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 22 (9 December 1980)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 22 (9 December 1980).
Other formats: Click here to view the original document (PDF).
HOUSE OF COMMONS
Issue No. 22
Tuesday, December 9, 1980
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays, P.C,
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss) (South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Tuesday, December 9, 1980:
Mr. McLean replaced Mr. Crombie;
Mr. Henderson replaced Mr. Gimaiel;
Mr. Bockstael replaced Mrs. Côté;
Mr. Crombie replaced Mr. Kilgour;
Mr. Fraser replaced Miss MacDonald;
Mr. Epp replaced Mr. Speyer;
Mr. Beatty replaced Mr. McLean;
Mr. Tobin replaced Mr. Henderson;
Mr. Lewycky replaced Mr. Robinson (Burnaby);
Mr. de Corneille replaced Mr. Mackasey;
Mrs. Côté replaced Mr. Irwin;
Mr. Robinson (Burnaby) replaced Mr. Lewycky;
Mr. Irwin replaced Mrs. Côté;
Mr. Mackasey replaced Mr. de Corneille;
Mr. Allmand replaced Mr. Tobin;
Mr. Anguish replaced Mr. Nystrom.
Pursuant to an order of the Senate adopted November 5, 1980:
On Tuesday. December 9, 1980:
Senator Tremblay replaced Senator Murray;
Senator Donahoe replaced Senator Beaubien;
Senator Austin replaced Senator Guay;
Senator Lamontagne replaced Senator Rousseau;
Senator Rousseau replaced Senator Connolly;
Senator Asselin replaced Senator Donahoe;
Senator Lewis replaced Senator Petten;
Senator Rizzuto replaced Senator Lamontagne.
MINUTES OF PROCEEDINGS
TUESDAY, DECEMBER 9,1980
The Special Joint Committee on the Constitution of Canada met this day at 9:40 o’clock a.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Connolly, Donahoe, Hays. Lapointe, Lucier, Petten, Roblin Rousseau and Tremblay.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Fraser, Hawkes, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, McLean, Nystrom and Robinson (Burnaby).
Other Members present: Messrs. Allmand and Stevens.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Hugh Finsten, John McDonough and Louis Massicotte, Researchers.
Witnesses: From National Black Coalition of Canada: Dr. Wilson Head, President and Mr. J. A. Mercury, Executive Secretary. Front Coalition for the Protection of Human Life: Dr. Barry DeVeber, M.D., Head of Pediatrics at U of W.O.; Dr. Elizabeth Callahan, M.C., Board Member; Mr. Philip Cooper, Vice-President; Mr. Don McPhee, Executive Director and Ms. Denyre Handler, journalist. From National Association of Women and the Law: Ms. Deborah Acheson, Member of the Steering Committee; Ms. Monique Charlebois, Member of the Steering Committee; Ms. Tamra Thomson, Ottawa Caucus and Ms. Pamela Medjuck, Member, National Steering Committee.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
Mr. Head made a statement and with Mr. Mercury answered questions.
Mr. McPhee, Ms. Handler, Ms. Callahan, Messrs. DeVeber and Cooper made statements and answered questions.
Ms. Acheson, Ms. Charlebois, Ms. Medjuck and Ms. Thomson made statements and answered questions.
At 1:25 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met this day at 4:04 o’clock p.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Hays, Lamontagne, Lapointe, Lewis, Lucier, Roblin, Rousseau and Tremblay.
Other Senator present: The Honourable Senator Bosa.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Mr. Corbin, Mrs. Côté, Messrs. de Corneille, Epp, Fraser, Joyal, Lapierre, Lewycky, McGrath, Nystrom and Tobin.
Other Member present: Mr. Allmand.
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 Council of National Ethnocultural Organizations of Canada: Dr. Laureano Leone, President; Mr. Navin Parekh, First Vice-President; Mr. George Imai, Secretary; Mr. Andriy Bandera and Mr. Algis Juzukonis.
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. Leone, Parekh, Imai, Bandera and Juzukonis made statements and answered questions.
At 5:53 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met this day at 8:13 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Lapointe, Lewis, Lucier, Rizzuto, Roblin, Rousseau and Tremblay.
Representing the House of Commons: Messrs. Allmand, Anguish, Beatty. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Fraser, Hawkes, Irwin, Joyal, Lapierre, Mackasey, McGrath and Robinson (Burnaby).
Other Members present: Messrs. Hovdebo, Roche and Waddell.
In attendance: From the Research Branch of the Library of Parliament: Messrs. John McDonough and Louis Massicotte, Researchers.
Witnesses: From the British Columbia Civil Liberties Association: Professor William Black, Member of Executive Committee; Professor David Copp, Vice-President. From the Association of Metis and Non-Status Indians of Saskatchewan: Mr. Wayne McKenzie, Executive Director; Mr. Jim Sinclair, President; Mr. Jim Durocher, Provincial Treasurer; Mr. Frank Tomkins, Provincial Secretary and Mr. Rob Milen, Legal Counsel.
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. Copp and Black made statements and answered questions.
Messrs. Sinclair, Durocher, Tomkins made statements and with Messrs. McKenzie and Milen answered questions.
At 10:57 o’clock pm., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Tuesday, December 9, 1980
The Joint Chairman (Senator Hays): Might I have the attention of the Committee?
It is now 9:40 a.m., and we should like to begin our proceedings this morning. We are glad to have the National Black Coalition of Canada represented by Mr. Head, who is President, and Mr. Mercury, who is the Executive Secretary.
Mr. Head, we are glad that you are here this morning and we are looking forward to your brief. The usual procedure is that you make a statement and then members of the Committee would put questions to you.
You may proceed now, Doctor Head.
Mr. Wilson Head (President, National Black Coalition of Canada): Thank you very much, Mr. Joint Chairman.
We are very pleased to have the opportunity to be here and to make a presentation before this very important committee.
The National Black Coalition of Canada is the only national organization of black people in this county, founded in 1969, as we have indicated in our brief, and has been operating on behalf of securing the rights of black people in this country.
We make a very brief statement that black people have been in this country for a very long time. We do this because a great number of Canadians seem to feel that most black people who are in Canada now are recent immigrants; but black people go back to the year 1628, which is a fairly long period of time in history.
Having been here all these years and have contributed greatly to the growth and development of Canada—Canada has grown and developed through the efforts of black people— including fighting in the wars that Canada has been involved in, we feel it is very important that while we are a small population you should become aware of our needs, interests and requirements; among those, of course, is the strong feeling that we need to have the same kinds of rights and responsibilities that other Canadians have. At the moment we cannot say we have those.
We feel that the black population has been severely discriminated against and has suffered a great deal of prejudice and in that sense it has some of the same kinds of complaints that the Indian population, that is, the native people have, the Chinese population and the South Asian population have had in Canada, except that we go back futher than those groups do.
In that connection, we have a great feeling that we are a part of this country, have been a part of it, from the very beginning, and our contribution has not been recognized. We would like to have it placed on record this morning that we want those contributions recognized.
Now, in our presentation, we are not trying to cover the whole constitutional package. We are focussing our attention on those matters which are of particular concern to us, and
that is the whole question of fundamental freedoms and basic democratic rights. legal rights and nondiscrimination rights.
We want to make it very clear, first of all, that in principle we support the entrenchment of a bill of rights in the constitution. We want to see the constitution patriated to Canada and we want to see in that constitution an entrenched bill of rights.
However, we do have some concerns. We are not altogether happy with all of the bill of rights. in that connection we are, I suppose, in somewhat the same situation as a number of other groups who have appeared before you.
For example, we feel that some of the statements are too vague. Having been a part of the preparation of the brief of the Canadian Civil Liberties Association, I can say that I, personally, share some of the concerns that they have in terms of the vagueness of some of the language, and I speak particularly of such words as “fundamental freedoms”, and those kinds of things in which we talk about “natural rights”, et cetera.
We would like to see some of these things spelled out. On the question, for example, of freedom of speech, we believe very strongly in freedom of speech, while at the same time, of course, being against censorship. But we would like to see freedom of speech limited only in certain specific ways. In the brief we have indicated, for example, that to a large extent we believe in the doctrine of clear and present danger. We think that freedom of speech should be curtailed where the danger is clear. For example, we have no right to go into a crowded theatre and shout “Fire!” resulting in people being trampled to death as a result of fleeing from a fire which is nonexistent and where there is no danger at all. In a situation like that, obviously, we do not have absolute freedom.
But we think this needs to be spelled out a lot more clearly than it is today.
On the question of discrimination, we feel that Canada, as a signatory to the United Nations Covenant on Discrimination, should be willing to go just as far as the United Nations have gone.
We are very pleased, for example, that Canada now has a Human Rights Act and a Human Rights Commission. Each of the 10 provinces also has Human Rights Commissions and codes. In our own province, Ontario, we have just had introduced in the legislature recently, since this brief was written, a new code which has revised the old code, and which in many ways is much better than the previous one.
But these are matters of legislative control. The same legislative group which passed this act and the other Human Rights Code, can also retract and emasculate them.
So that in a sense, then, we are saying we would like to see the Human Rights prohibitions against discrimination put into the constitution so that neither the provincial legislatures nor the federal Parliament can take them away without going to a great deal of difficulty.
Now, we are aware of the fact the Premiers of the various provinces have been saying that they are the best protectors of human rights. They say they are the best protectors against discrimination against various racial and other minority groups. We do not agree with that. Our experience has been that the provincial governments have not protected human rights well, even though they have passed these codes.
I repeat that each of the ten provinces and the federal government have Human Rights Codes and commissions whose function it is to protect the basic democratic rights of people, to restrict and prohibit discrimination based upon race, creed, colour and a number of other criteria. But we feel that these are tenuous, and are not well protected. In the final analysis, some of the codes which are there are not implemented well.
For example, take the Ontario code. We have a provision that the Commission itself has a right to go out and initiate complaints. It has never done so. That provision was written into the Ontario code in 1974 and it has never done so.
It sits back and waits for someone to complain and no individual comes forward in many cases, because they are afraid to complain because they may lose their job, and when that happens nothing is done; and so the onus is on the individual to do this.
We believe, for example, that the reference in this constitution to “affirmative action” is very well taken. We believe that, in order to overcome the long, 300-year history of discrimination against blacks in Canada, that affirmative action is a necessity.
We feel that if one simply opens up equality of opportunity—and we do not believe that is true now, but let us say that it is true—it would take another l00 years before we are able to make up for the past discrimination or the past history of discrimination over the last 200 or 300 years in Canada.
So that, in this sense, Mr. Joint Chairman, we would like to see this kind of thing entrenched in the constitution so that it can be much better protected than the question of human rights is being protected at the moment.
Now, we are aware of the fact that in doing this, in calling for this, that we are stepping on some very important toes. We are aware of the fact that some people would say we are undermining the supremacy of Parliament. We do not accept that. We believe in the parliamentary system. One has to go beyond the fact of majority rule. So, whether it is a majority party, a referendum or whatever, the rights of the minority, it seems to us, are an essential part of any democratic government. It is not just merely majority rule. You can have the tyranny of the majority as easily as you can have the democracy of the majority.
So, in this sense we want to see the rights of minority groups entrenched in the constitution so that even a majority, even a given Parliament at a given time, would not be able to abrogate these rights.
We are very conscious of the fact of what has happened to the Japanese Canadians in World War II when they were put into concentration camps, violating their rights, in many cases people who were citizens of this country, in some cases residents.
So, we are saying we want to prevent, as far as is humanly possible that sort of thing from happening in the future.
I have to admit at the same time in saying this that, where I come from, in the United States, we have these rights in the constitution and they were still abrogated, so that nothing is 100 per cent absolute.
But the difference between the two countries was that after the war was over, the Supreme Court of the United States did rule that it was a violation of the constitution and people were given some compensation, and this situation did not happen in Canada because there was no law which could go beyond the edict of Parliament.
I would like to raise one other point before I ask my colleague to say a few words; that is, on the question of citizenship and the rights of citizens.
It seems to us that the present proposal restricts the rights to citizens, leaving out residents.
Now, Canada has a three-year waiting period. It used to be five, but it is new three, for a new immigrant to become a citizen. Are their rights to be abrogated during that three-year period, even though they are good Canadians and working hard in this country, producing and contributing to the welfare of this country?
It seems to us that all landed immigrants—the term used to be landed immigrant; it is now permanent resident; it seems to us that all these people should be involved in the protections which are available to the ordinary citizen. These are people who have made their commitment to come to Canada and registered as permanent residents, and are simply waiting for the end of the three-year period before they can become legally Canadian citizens.
I would like to stop at this point, Mr. Joint Chairman, by saying that at the end of our presentation, we talked about a matter which does not refer to us directly, but only indirectly; and that is the question of the native people.
We are very much concerned that where the rights of the native people are abrogated, then none of our rights are safe. Our view is that the native people have been treated very badly in this country, and we have never given them the rights they deserve, in spite of treaties which have been signed, and in this sense Canada has had a shameful history, a history which is still being repeated today; and we feel very strongly that the rights of all people, in this connection, native people, Chinese, browns, South Asians, Pakistanis, wherever they come from, as well as blacks, should be protected. We are very pleased that this act looks at some of the other questions which have not been covered before, but not all. It does not yet address itself to marital status, it does not address itself to the handicapped, and it seems to us that these are the kind of things that ought to be included.
Now, finally, we are aware again of the difficulty of putting in a constitution every single minute detail. We are quite aware of that. We know a constitution is not a situation in which you can try to cover every single thing, and so we are caught in a dilemma, which I am sure you are caught in, of saying we ought to include every specific thing we can think of but at the same time realizing there may be things which we do not think of and which ought to be in.
Realizing the difficulty of amending constitutions once they are in place, then we say in effect this Committee should be looking at clauses and phrases which, in one sense, are quite specific, and in another sense which are all inclusive, and that in the final analysis it should be up to the government itself to say why certain rights are abrogated. It should not be up to the people to have to continue to fight for the rights. the government should confer these rights in a very general sense on the one hand, but specific on another, and at the same time say that if the government wishes to restrict these rights in any way, let the government make the case; that the burden of proof be upon the government to make the case that these rights ought to be abrogated.
It seems to us that the way that is done best is through the courts. I for one am not a great believer in the courts in many respects. I realize the slowness, I realize the courts take a lot of time, I have known cases where the case becomes moot while it is being tried because you wait two or three years to get a court case, a hearing or a judgment. However, I am reminded of the very tremendous work that has been done in the United States Supreme Court, I lived in the United States, I went through a segregated school system, I lived in segregated housing, I lived in ghettos, brown or black ghettos, I went to all-black schools, and yet the Supreme Court of the United States, which had ruled in 1918 and in 1896 that segregation was legal and that it did not violate rights, that same Supreme Court in 1954 ruled that segregation was ipso facto illegal. It was basically against the Constitution of the United States, it was a denial of due process, and since that time the Supreme Court has consistently ruled in that favour in the United States and has oftentimes overturned the laws of state government and others who would restrict the right of blacks to vote, to hold office, to live in certain parts of town, to have their children educated, et cetera.
So in that sense, then, I would prefer that the constitution be interpreted not by the Parliament or by the legislatures of the various provinces, but by a court which would presumably operate on the basis of not being pressured by the political climate at that particular time.
Thank you very much, and my colleague may want to say a few words, Mr, Chairman, and I hope you can give him the time to do so.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Head. Mr, Mercury.
Mr. J. A. Mercury (Executive Secretary, National Black Coalition of Canada): Ladies and gentlemen, I only have one point that I would like to make clear and that is I would like to speak on our Canadian policy of multiculturalism. It is a policy that clearly suggests that all the peoples of various
races, colours and national origins can live and work together in peace and harmony. I think this goal has not yet been attained, but even granting the existence of some degree of prejudice and discrimination based on race and other factors, this country is, nevertheless, in my estimation making considerable progress.
The black and other nonwhite population of Canada should be given the opportunity to develop their skills and abilities and to make our contributions to this society in freedom and with respect, but in order to do that I feel that it is clearly indicated that the governments committment to the protection of the policy of multiculturalism must be also entrenched in our constitution.
I have no quarrel to make with the present emphasis on French and English as to two official languages, but constitutional protection must also be given to the preservation of the multiethnic nature of our Canadian society. We should not forget that roughly one third of the population of this country is neither English nor French.
That is all I have to say.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Hawkes.
Mr. Hawkes: Thank you, Mr. Chairman, and welcome, Mr. Head and Mr. Mercury, to our constitutional Committee.
I have a series of questions and I hope none of them are too long, but you indicate clearly in your brief that the Canadian Bill of Rights has proved to be virtually not effective in creating the kind of society that you would like to see, and you indicate a lack of satisfaction with provincial codes generally and you specify that in the province of Ontario part of the problem, at least, is the lack of resources and staff to see that the code works.
I am wondering if you could indicate to us whether or not you think there is a province in Canada that is further advanced in the protection of human rights than perhaps some of the other provinces? Is there an example in our own country or is the United States the only example you can point to where a charter seems to get the job done?
Mr. Head: Yes. Let us put it this way: the Ontario code was the first in Canada, enacted in 1961, and it was sort of a model for the other codes, but I would say some of the other codes have supplanted. shall we say, the primacy of the Ontario code.
Now, the new amendments I mentioned a moment ago which have just been introduced into the legislature there, I think will bring the Ontario code up to par with the other codes, but at the moment I would say what I am concerned most about, as I indicated earlier, is both the code itself and the enforcement of it.
Now, I would say from my point of view, in my perspective, and I think all of us would agree with this, that the Commission in Nova Scotia has probably done the best job of anyone in Canada. I would say that the code has been used very well, and because of the nature of the staff you have there, the nature of the implementation process they have gone further
by far then we have in Ontario or in any other province in Canada.
In some of the provinces the codes are very weak and of course the number of staff people are very small, like six and seven people. In Ontario yesterday, I checked this out just yesterday, we had 27 enforcement officers, and they have a back log of somewhere around eight or nine months now. So if you felt today that you had been subjected to discrimination and you applied to the Ontario Human Rights Commission for redress, it would be eight to nine months before they could even get around to investigating the situation. So in that sense, then, we feel very little protection in this.
I just finished doing a study recently of attitudes by black and brown people towards human rights in Ontario and particularly in metropolitan Toronto, and I found that less than one out of ten. less than 10 per cent of the people who feel they have been discriminated against, even bother going to the Human Rights Commission. For two reasons: first, they do not know about it, it is not publicized, there is no budget for public relations work, informing people of it; and secondly, they do not trust it. They do not believe it is any good anyway and their appeal will fall on deaf ears. Now, I think to some extent this is not entirely correct, but it does have a grain of truth in it, I think.
Mr. Hawkes: The National Advisory Council on Women, in their brief before this Committee, suggested that race and sex were determined at birth and therefore were characteristics of individuals that could not be changed and they felt that within the Charter that some consideration should be given to clauses that dealt with those two characteristics separate from some of the other characteristics such as age, religion and so on.
I am wondering if you have considered that perspective and whether you have any advice to us on that perspective?
Mr. Head: No, I do not think I would have any advice to you on that. It seems to me that we ought to prohibit discrimination on any arbitrary ground, any grounds having nothing to do with the merits of a person for the particular job or the particular service they are applying for. I do not know whether their need be a special reason along those lines but maybe they have some that I do not know about.
Mr. Hawkes: On page 10 of your brief. in your concluding comments on page 10 and the top of page 11, I would just like to read you two or three of your sentences and just ask you to comment:
We would hope, however, that this important step can be taken in a spirit of co-operation rather than one of bitterness and anger. The Canadian policy of multiculturalism clearly suggests that peoples of various races. colours, national origins, et cetera, can live and work together in peace and harmony. This goal has not been attained.
In part are you addressing yourself to the constitutional process that we find ourselves in? Are you suggesting that unilateral action and bitterness that may come out of that should be avoided through some change in process?
Mr. Head: Yes, we are suggesting that. We are suggesting that we have been, shall we say, dismayed with the tremendous amount of bitterness aroused by the process. While we are a 100 per cent in favour of the entrenchment of the Bill of Rights, we are dismayed about the fact that there has been so much controversy and confrontation and anger around it, and my own inclination would be to go a bit slow and I was very pleased to see that the government was to extend the time of these hearings to February 6. and I had hoped that would make some difference to the people who felt they did not have time to make their contribution, but I was just reading the statement the other day of Mr. Claude Ryan in Quebec who was suggesting that perhaps we ought to have one more attempt at working this out by the provincial governments. I do not have very much faith that a great deal would happen if you did that; on the other hand, I certainly would not object to seeing an attempt made again.
Mr. Hawkes: You have said to us clearly that you do not trust the courts absolutely but in the kind of real world we live in you think there might be more protection coming from the courts, from an entrenched bill of rights and the place of the courts in that process.
I am wondering if you have given any thought to the Canadian system of judicial appointments. You drew some analogies to the US, system and in that system judges are elected at some levels and certainly judges at the supreme court level are subjected to considerable public scrutiny before appointment to the bench, ratification by congress and the senate. I am wondering if you feel that if we are moving to entrench something the Charter of Rithts, if we are putting more responsibility in the hands of Canadian courts, whether or not you think there needs to be some institutional change in relationship to the appointment of judges, some greater examination of their backgrounds and voting records and things of this kind?
Mr. Head: Well, I feel that a little more needs to be done that way, yes. I think there are limits, shall we say, there are very strong inadequacies in both systems. Certainly in some of the states in the United States judges are elected and they have to run for office like any politician. in others they are appointed and so on, in some they are appointed from a list supplied by the American Bar Association and so on.
I would think that one of the things we might do here in Canada. in terms of appointment of judges, is to have qualified people, perhaps the Bar Association or someone, supply a list suggesting names, and this does not have to be one name, it could be three, four, five names, from which the government might appoint. I think that we have a long way to go and a lot more thinking to do about the appointment of judges. but at least judges to some extent are free of the kind of day-to-day political pressure which politicians have to be responsive to if they want to keep being elected.
We know very well that public attitudes changed rather rapidly, particularly when a crisis arrives. We see the rise of groups like the KKK here in Canada, and while you and I might never have thought, I certainly have thought it would
never happen in Canada, it is happening. This is happening because, and I have talked to one of the leaders of the KKK, he has said clearly as far as they were concerned the soil in Canada is ripe for the evolution of a group like the KKK and they are busy establishing themselves around the country.
If they become powerful enough then people will pay attention to them and they may have some influence. I hope not, but they may. I would think the court could resist that kind of thing, if they had the kind of independence which I assume that they do have.
I realize again that this is not absolute. Someone said that the Supreme Court reads the newspapers too, but I would have a little bit more faith, yes, than I would have in legislatures and in city councils, yes.
Mr. Hawkes: This is my last question. Have you any suggestions for us, and I would go to Mr. Mercury on this, but you have indicated clearly that you would like to see put into this new constitution some set of principles that would bring to light the multicultural nature of Canada and entrench that as a viable and positive affirmation of the reality of the Canadian existance.
Have you any specific suggestions as to clauses, or places that we should consider putting this, and in particular do you have a perspective on the need to protect more than two languages, some kind of positive affirmation principle of third and fourth language training for individuals.
Mr. Mercury: I recognize first of all that we do have two official languages. I do not think that you will perpetuate other languages and cultures by attempting to entrench them specifically in the constitution because there would be far too many to have to do that to, but what I am suggesting is that there could be an alternative opportunity made apparent in the constitution for individuals from these other cultural groups to perpetuate their culture with the official sanction of the government.
Now it is more or less of a singing and dancing sort of routine, like we love you madly once a year as long as you sing and dance and then go back to your festivals later. But to me that is not what multiculturalism is all about.
I think what happens is we tend to lose sight of the fact that these people from other nations have also had a decisive input into the historic content of this country and have given us of their culture and of their learning, and by the same token I think it is not recognized sufficiently; and the way in which we could recognize it could be that at the beginning of July when we celebrate Canada Day we could make it a multicultural day and talk about the diversified cultures in this country rather than just talk about the so-called founding nations.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes. Mr. Nystrom.
Mr. Nystrom: Thank you very much, Mr. Chairman.
I would like to welcome Mr. Head and Mr. Mercury here this morning and to begin by picking up the answer to the second last question by Mr. Head when you were referring to the KKK, the Ku Klux Klan. I want to ask you a couple of
questions about whether or not you think the Klan’s activities would be affected by the Charter as the Charter is written and to what extent you think a Charter of Rights should curtail the activities of the Ku Klux Klan.
I want to say as a preamble that I, like you, am very concerned about the possibility of the Klan’s growth in this country. It is a very reprehensible organization and it is one that is a very negative force in our society. I say as a member from Saskatchewan, because in my province back in the 19205 the Klan had a major influence on politics, I think the Province of Saskatchewan is the only province historically in our country where the Klan way well organized, where it had a major impact back in the 1920’s. It had an impact in the 1929 election and succeeded in helping turf out the Liberal government of that day and electing in its place a more conservative alternative.
In those days of course in my province there were not any black people. The Klan’s activities were directed mainly against catholics and immigrants from Eastern European countries. I think of people that came in from Poland, the Ukraine. Czechoslovakia, from Russia and the like, so I have a really negative feeling of hostility against people like the Klan who base their whole raison d’être on racism and attacks on other people.
I would like to ask you whether or not you think the Charter as written would have any effect on an organization like the Klan, and secondly to what extent should a Charter of Rights curtail their activities in light of the fact that we also have enshrined here such things as freedom of assembly and freedom of speech.
Mr. Head: This is no doubt a very tricky question. In some of the organizations that I have been involved in, both in the United States and in Canada since I have been living here for the last 20 years, we have had to wrestle with the situation and you never get a unified opinion. You get differences of opinion across the board, and the whole concept of freedom of speech in terms of absolutes is one thing. As I indicated earlier, it has to have restrictions at a certain level. I think the tricky point of it is how do you define that balance. At what point do you draw the line?
The usual thing said is you draw the line at behaviour, and this is what our Attorney General says in Ontario. He says when the Klan takes some illegal action we will crack down on them just like we would on anybody else who takes illegal action. That does not get at the question though of what happens as they are building up to that illegal action. Are they permitted to do anything they want to, short of this.
The new Klan is more sophisticated than the old Klan was. I suspect they have legal advise because they seem to be avoiding taking action which will get them in conflict with the law as now written so in a sense then we have to look again at the way our laws are written and say how can we make this law a little more explicit.
I am not a lawyer and I am not sure even lawyers could do any better when they come down to drawing this out. One person said to me some time ago, if you really got into this I
know what would happen, lawyers would have a great time because they would make a lot of money arguing the case.
But I feel that it is up to the government to make it very clear where it stands on this matter. Let me put it this way. I still feel a sense of pride when I hear the ringing words of the Declaration of Independence. All men are created free and equal. All men have certain inalienable rights. We know that those have not been lived up to fully but at least the statement is there that this is where the government is, this is where the government stands, and it will take all the legal methods it can to live up to those statements.
I am saying to a large extent this may merely be symbolical but I think in this case the symbolical act is important. The government has made a commitment in this situation. I will leave it to the lawyers to decide how far you can go in terms of drawing the line. I cannot do that myself, but I feel it is important for the government to state this in its new constitution. Whether it is in the body of the constitution or the preamble, I think this is extremely important and needs to be stated.
Mr. Nystrom: I wonder if Mr. Mercury could add something here, because you are saying you are not a lawyer, nor am I, and we are talking about their activities being in conflict with the law as written.
I ask this again because of a couple of comments you made earlier, Mr. Head, that you had the feeling that the KKK could grow from what one of their leaders has said. I refer back to Saskatchewan in the 1920s again; we were a province of fewer than a million people, and I believe the membership in the Klan in those days was nearly 30,000 people which is an amazingly high number of people for an activity of that sort. You also referred to the possibility that public opinion can change very quickly in a crisis or a major eruption of society and the eruption in our society in those days of course was the mass influx of immigrants from Eastern Europe. I am thinking particularly, as I said, of the Ukrainian people, and up until that time Saskatchewan was primarily an Anglo»Saxon settlement. The English people were the first to come, primarily from places such as Ontario and parts of the United States. So we had this great upheaval in society and because of that unfortunately a lot of people joined the Klan.
I, like you, do not want to rest on my laurels and say it can never happen again. I think history can repeat itself. So I want to ask Mr. Mercury whether or not he can add anything else to what we should be putting in our Charter to make sure the activities of reprehensable organizations such as this are curtailed, yet of course recognizing as you say we need to have freedom of assembly and freedom of speech.
Mr. Mercury: One of the things that I worry about, Mr. Nystrom, is the fact that when we are talking about prohibitive action towards any group, that same action can be utilized against other groups. Incidentally, if I may correct you, the membership of the Klan in the 1920s in Canada was upwards of 40,000 in actuality. One of the things we must not lose sight of is that there are other government institutions in place that
have the tools to do the job right now if they would utilize the authority that they already have at their disposal.
For instance. one of the insidious things we have found about the Klan lately—and as Mr. Head has already indicated, they seem to be using modern day communicative methods—is that we find the Klan in all facets of the communications media, electronic, visual and audio.
Now, I think when an organization does a specific thing or comes into being that is news; but when it is exploited by various facets of the media to boost their circulation, which appears to be taking place with the Klan, particularly in the Province of Ontario, and latterly, we have been getting reports as recently as two weeks ago, for instance, in Nova Scotia, I question whether governmental bodies, such as the CRTC cannot step in and make some prohibitive ruling.
For example, if you were to make a group of people aware that such and such a group is in existence, fine; but when you Find a group spewing the type of garbage this type of organization is doing on open line shows two and three hours at a stretch on consecutive nights, in consecutive weeks, I question whether that is really in the public interest.
I am saying it does not require action in a bill of rights; the tools are there to do the job now if we utilize those tools.
Mr. Nystrom: I would like to switch to another matter if I have time for one more question. I would like to say that the existence of the Klan in my province was the most negative thing historically in the Province of Saskatchewan.
At page 10 of your brief, you are talking about discrimination and you are saying there should be a reasonable test. You are agreeing with the Canadian Civil Liberties Association saying that discrimination should be prohibited on any unreasonable grounds.
I want to ask you about Section 15 of the resolution before us where it says:
15.(1) Everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.
I want to ask you why you are calling for a test of reasonableness in the case of race, national or ethnic origin or colour? Because it seems to me, sir, that even in times of emergency, war, great emergency in this country, that there should not be any discrimination whatsoever on the basis of a person’s colour, or his national or ethnic background. I do not believe that anything should justify discrimination on the basis of those factors, regardless of how dire the emergency may be.
Mr. Head: Yes, I agree with you on that. We have had a very long discussion on this this past Saturday, on that very same point you have raised.
What the word should have been is “arbitrary”. It should have been “arbitrary grounds”.
So I would agree with you, that there should not be any discrimination at any point, whether in times of war, insurrection, or apprehended insurrection or whatever the situation may be, on the basis of race, creed, colour or any other
criterion. So, that should be an absolute. So what I am saying is a modification of what is written there.
Mr. Nystrom: Thank you very much.
The Joint Chairman (Senator Hays): Thank you, Mr. Nystrom.
Mr. Lapierre: Thank you, Mr. Chairman.
It is my pleasure to welcome you and to acknowledge at least your positive contribution to the work of this committee.
First of all, I would point out to Dr. Head that when we talked earlier of the appointment of judges, indeed, since the time The Right Hon. Prime Minister was the Minister of Justice, the bar association, either local or provincial bar associations are consulted on the appointments of judges
As far as your different recommendations are concerned, I am somewhat surprised when you tell us that less than 10 per cent of the people make the effort of going before the Ontario Rights Commission or other provincial organizations of that nature, you find it insufficient and yet you do not recommend any provision to redress that situation and it surprises me somewhat.
Although you complain about the slow proceedings of the courts you do not feel that we should include a kind of exceptional recourse in the charter, a provision of redress.
Mr. Head: I feel we have to do more, in the sense of getting our courts to the point where they can deal with this quickly.
I am among those people—and I am sure there are many others—who deplore the slowness with which justice is achieved or administered in this and many other countries. I abide with the saying that justice delayed is justice denied. I abide with that very strongly.
So I would like to see the kind of, shall we say, resources put into this field as is put into some other fields, so that when a person does feel that he or she is discriminated against that person can get quick action, and the case can be resolved very quickly.
It seems to me to be a crime that one should wait eight or l0 months before a case is even picked up. This goes on in other types of cases as well and is not restricted to cases of discrimination. In other kinds of cases you may even wait a year or two or three before getting a judgment.
This, of course, requires a massive increase in the amount of resources available to this kind of organization, the tribunals or whatever they are,
It seems to me that no matter what we put into law or constitutions, if we are not going to make that type of commitment, then we are wasting our breath and we will be getting nowhere, and it would increase the amount of frustration and bitterness on the part of many people who feel they have been discriminated against and cannot find redressed in a reasonable period of time.
Mr. Lapierre: Well, I am addressing myself specifically to the inclusion of a remedical clause in this Charter.
Mr. Head: As to a remedial clause, I am not quite sure in my mind—and perhaps some of the lawyers here can say—as to whether or not you can put a remedial clause in a constitution. I know you can do this in legislation. The legal people here may be able to speak to that.
But I think a constitution has to be very clear as to what its meaning is, so that the people will be aware that this is where this government, this is where Canada stands, not only the government, but the people of Canada; so that in this sense certain types of behaviour of discrimination, etc., is not acceptable here either in practice or in theory. What you do in terms of putting enabling clauses I suspect may have to be left to the legislature. That is the only answer I can give you to that question.
Mr. Lapierre: Personally, I think we could have a remedial clause in there.
Now, under Section 2, you talk about free speech. I have a note to the effect that in a way you would like it to be limited, In Section 2(b) you are recommending the inclusion of the doctrine of “clear and present danger”. I was wondering why.
Mr. Head: That is because we recognize that there can not be absolutism in free speech.
As I have indicated earlier, there has to be some limit at some time, but we would like any to apply as rarely as possible.
For the most part, we feel unless there is a clear and present danger, free speech should be permitted at all times. That comes back to Mr. Nystrom’s question, namely, to what extent should the KKK have freedom of speech? That is a very practical example. It causes some difficulty to some minds.
We would say, in general, the freedom of people to advocate the destruction of other people should be among the prohibited grounds. This is not a matter of free speech. It is saying, in effect, that the KKK is in favour of the destruction of black people, or the destruction of Jewish people, and they have been—and to some extent still are—advocates of the destruction of catholic people, and it is in my view the kind of step which could, if carried out, lead to genocide; and I would be opposed to anybody advocating genocide; and I think the KKK skirts that issue very clearly, it gets very close to it. I think in this situation they ought to be looked at.
Certainly, already the Canadian Human Rights Commission has, in a case dealing with hate messages on the telephone, ruled against the Western Guard, which is a companion organization of the KKK. This is a case where the Western Guard was putting on messages on Toronto telephones, where you dial a number, 967-777.
Some hon. Members: Do not tell anybody.
Mr. Head: Are there any KKK members here? It is all cleared up right now, so it would not do you any good, folks.
But that ruling—and I happen to have it with me, and I was reading it on the plane on my way here—did condemn the
Western Guard. That was a case which was brought before the Canadian Human Rights Commission recently.
Mr. Lapierre: There are some other places where you make recommendations. Section 3, for instance, you say that the phrase “unreasonable distinction and limitation” is to vague and should be removed. I think it was put there to make sure that voters are more than 18 years old, and prisoners do not vote and things like that. If we were to remove it, then where will be the majority rule and so on?
Mr. Head: Well, all we are saying is that you should state it clearly. If you are talking about 18 year olds, if you are saying 6 year olds voting, or under 18s then state it. Because what is “unreasonable changes from one generation to another”? All we have to do is to look back over the last ten years and see how “reasonableness” has changed.
Mr. Lapierre: On section 4(2) we have not had many representations, but you seem to be worried about the continuation of the House of Commons in special circumstances.
But in practice I do not think anybody has to worry, because the practice has been that governments have lasted for less than four or five years.
But you seem to be worried about the word “apprehended”. I was a little surprised, because it is new for me.
Mr. Head: Well the word “apprehended”—and I looked it up in the dictionary to make sure I was right when I talked about it; but that word to me is a very imprecise one. What is “apprehended”? Is it something that is going to happen, or something that you think is going to happen, or that there is evidence that it is going to happen, or how strong is the evidence?
It seems to me that one has to be clear that it is going to happen, and then you should only restrict liberties to the extent that it is absolutely necessary, and as I have indicated in my comments to Mr. Nystrom that, in the case of discrimination, it is never necessary.
Mr. Lapierre: Finally, Mr. Joint Chairman, on the legal rights section, you are recommending not to include the principles of fundamental justice. Last night the Federation Canadienne des Libertés Civiles asked us to put it there in some other instances.
I am a little surprised, too, because they say it is a new formulation in law, and they think it must be good for the future of the legal aspect of the whole constitution.
Mr. Head: I have to admit, Mr. Joint Chairman, that these kind of terms, are extremely imprecise, and I do not really know what they mean. What, for example, is “fundamental justice”? Are we talking about due process? Are we talking about some concept of British Common Law, or the Napoleonic Code? Are we talking about the principles of natural justice propounded by Rousseau, or the principles of justice propounded by Plato? I am not sure.
So that is what I am saying. It ought to be spelled out.
The Joint Chairman (Senator Hays): Thank you, Mr. Lapierre.
Mr. Fraser: Thank you Mr. Joint Chairman.
I would like to join with my colleagues in welcoming you both here today.
I would like to turn back to an issue which was raised by Mr. Hawkes Originally, and commented upon briefly by Mr. Lapierre, and that is the system of appointing judges.
Mr. Lapierre said it is the custom now, before federal judges are appointed, to consult with the Bar Association. That is true. But the power of appointment lies, not with Parliament, but with the Prime Minister. As a consequence while a lot has been done over recent years to depoliticize the appointment of federal judges in Canada is a remarkably political act.
Now, that may or may not be appropriate, but because our judges have independence, by and large, once they have been appointed and they are there for a long time and cannot be taken off very easily, they acquire a remarkable independence, and it has not mattered too much when you are worrying about the ordinary interpretation of a private contract or a question whether or not there has been negligence in an automobile accident, it has not mattered very much what their political stripe was before they were appointed.
If we have an entrenched Charter of Rights, and if it then lies with the court, as it surely will, to interpret how those rights ought to apply in practice, then you are going to have judges inescapably being at least part of the policy making system with reference to those rights.
That is a proposition I put to you. Now, if you disagree with me, of course do so. But if you do agree that this is generally right, what are we going to do about it, because it is not enough just to transfer these things to courts. I would think all Canadians would like to know that they are being transferred to courts which will have judges where their fitness to make these kinds of decisions has received some kind of consideration.
I have not myself any clear idea as to how you would do this. But I would like to have your comments?
Mr. Head: I did not expect to get into the discussion as to the appointment of judges; but I would like to make a couple of comments anyway, though I will not be able to answer your question as you have framed it.
Part of our problem in Canada would probably be beyond how you appoint judges, because what we are dealing with and I mention the symbolic act when I was talking to Mr. Nystrom- is that in Canada the law has generally been, as British law tends to be, basically oriented towards the protection of property and not the protection of human rights.
Human Rights takes a sort of secondary position in Canadian society, and American society and British societies generally, and part of the difficulty we have as a minority group is that British law has very little concern about the rights of individuals of a minority group.
Now, if you keep in mind, for example, that the British common law and much of other British law grew up in a time
when England was a relatively homogeneous society. It made a lot more sense than it does now where in Canada we have a very hectogeneous society, and much of what we call British common law just does not seem to fit right now, where you have it interpreted by legislatures or by courts, and it seems to me that part of what I am saying here is that we want to change the emphasis to a large extent so that human rights and nondiscrimination and legal rights become a very, very important part of the total concept of the law, of justice in this country.
Now, it seems to me that the place that that change has to be made in a symbolical way is first in the constitution, and beyond that, of course, how you appoint judges and how you appoint this, that and the other is another matter which I cannot get into too much because I know too little about it. However, I am concerned over-all here with the big view, the wide view here of the concept of legal rights, of human rights generally speaking, and I have to sort of point out to you. sir, that even though Canada has signed the covenant of human rights with the United Nations, the Canadian government has not always lived up to those rights either.
So in a sense we have a serious problem of moving beyond our present preoccupation with the protection of property rights to the protection of human rights, and I think this is going to be extremely necessary in the next few years because I would agree with many people who say economically we may have a rough time in the next 10 or 15 years, who knows, and we have gotten it in the neck much more frequently in bad times than we have in good times. Discrimination is much more rampant, the growth of organizations like the KKK is much more rampant in times when things are tough and therefore the protection of our rights are much more important.
So in that sense, while I cannot get into the question of the appointment of judges that you raised, I do want to say I think there is a need for constitution which would make it very clear that the protection of human rights is a very important consideration in Canadian society today and this has been written into the constitution.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser.
Mr. Head and Mr. Mercury, on behalf of the Committee we wish to thank you for being here this morning, it is a good presentation, you have brought up some new items that we have not had before the Committee before and I know I speak for all of them in thanking you for being here.
Now, Mr. Joyal, my Joint Chairman, has something he would like to say.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Hays.
I just want to add that as a member of Parliament, and I am quite sure that I speak for all the members of this Committee, we resent very much the publicity that has surrounded the resurgence of the KKK in Canada. Up to this point Canada has had an opportunity to live without those seeds of discrimi-
nation and racial distrubance, and I think if we are to redefine the basis on which the future of this country will be established, we have to make sure that such groups do not find any kind of opportunity to establish and spread themselves in Canada, and I would like to thank you especially for reminding us of our responsibilities as members of Parliament and the honourable senators, to make sure that we make any kind of effort needed to prevent the establishment of such activities in Canada.
Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Head.
Our next witnesses are the Coalition for the Protection of Human Life. I should like to ask the following to come forward: Don McPhee, the Executive Director; Dr. Elizabeth Callahan; and Dr. Barry DeVeber. If they would take their place at the end of the table.
Mr. McPhee, are you making the presentation?
Mr. Don McPhee (Executive Director, Coalition for the Protection of Human Life): I will be making some introductory remarks and then I will be calling on other witnesses to give further testimony dealing with the sections we have outlined, and then following that we will be available for questions and we will call on various witnesses to answer those questions.
The Joint Chairman (Senator Hays): Thank you very much. You may proceed.
Mr. McPhee: Good morning. My name is Don McPhee, I am the Executive Director with the Coalition for the Protection of Human Life. We are very pleased to have been granted this opportunity to address this Parliamentary Joint Committee on the constitution of Canada, and I would like at this time to introduce our witnesses.
On my left is Dr. Elizabeth Callahan, a doctor at St. Clair and Grace Hospitals, in St. John’s, Newfoundland. On my right is Ms. Denyse Handler, a member of Feminists for Life of America, a free-lance writer and editor of a Canadian pro life publication.
Seated behind me, from left to right, is Oddette Lenard, our Board Member from Quebec; Mr. Barry Tunney. an Ottawa lawyer with the firm of Brennan, Tunney and McGurk; Miss Patty Brewer, Past President of Carleton University Pro Life; Mr. Philip Cooper, writer and editor and first Vice-President of Coalition for Life; and finally, Dr. Barry DeVeber, a professor of pediatrics at the University of Western Ontario.
As a human rights organization the Coalition for the Protection of Human Life was organized in 1973 as the political arm of the Canadian pro life movement. Many pro life groups are essentially involved in public education, to promote the respect for all human life, but our main concern is with the activities of our law makers in Parliament and provincial legislatures.
We keep a close watch on proposed legislation that might strengthen or undermine the protection of human life, and at the same time we keep a critical eye on how our present laws are operating. Meanwhile, we are ready to provide information and assist in drafting better laws.
Several years ago we played a key role in organizing the largest petition ever presented to Parliament. This petition was tabled in the House of Commons on May 29, 1975, bearing more than a million signatures. To be exact it was signed by 1,027,425 Canadians, all requesting the full protection of the law for the unborn child. No other petition has ever come close in size to that. However, regrettably, more than five years later our government still shows no sign of any response. We can only hope that our representations today will be taken more seriously than the more than a million signatures on that petition.
We are not here today to speak for any self serving special interest group. We are not here just to represent men, women or children, or anglophones or francophones, or any other segment of the population. We are concerned with the rights of all human beings, and particularly with the right to life itself.
We are especially concerned with the portion of the proposed resolution before you entitled the Canadian Chart of Rights and Freedoms. We have no illusions that written charters of this kind are any sure guarantee of human rights. In other countries they have often proved to be no more than paper shields, easily torn by the swords and spears of tyranny. Often, too, as interpreted by some courts, they can set up barriers to the realization of true justice. For this reason many people believe that entrenching a charter of rights in our constitution could prove to be a disasterous mistake.
This is not to deny it could also prove to be a blessing as long as we do it carefully and thoughtfully. If we are going to have a charter of rights and freedoms in our constitution, it is absolutely vital that we make it the best and clearest document we can, uncorrupted by ambiguity.
We have not attempted a thorough analysis and criticism of all the provisions in the proposed Charter, a task for which we had no time and for which we claim no special competence. Instead, we have concentrated on just a few areas where serious deficiencies cry out for correction. In our presentation this morning we will be dealing with Sections 1, 7 and 15.
Our analysis and recommendations for Section 7 will be presented by Denyse Handler. Dr. Callahan and Dr. DeVerber will deal with Section 15, followed by our comments on Section 1 presented by Phillip Cooper. We will then answer any questions you may have concerning our submission.
I would now like to turn the microphone over to Denyse Handler.
Ms. Denyse Handler (Journalist): Although we are politically oriented, our organization is nonpartisan and nondenominational. We have members all across Canada belonging to every major party and every major denomination, and of course members who belong to no party or no religion. We are agreed on three fundamental principles:
First, the right to life is the primary and basic human right on which all other rights depend.
Second, all human beings have an equal right to live before and after birth.
Third, the state has a duty to uphold and defend that right.
The right to life, we should point out, is not an acquired right or privilege like the right to drive a car or receive a certain salary. It belongs to all human beings by virtue of their humanity. it is an inherent right as distinguished from a privilege, conferred by law or achieved through one’s own efforts. This is expressed in Article 6 of the International Covenant on Civil and Political Rights, which proclaims that every human being has an inherent right to life.
Not only is the right to life inherent, it is also fundamental. It is a cornerstone. What we see wrong with Section 7 is that this would enshrine “the right to life, liberty and security of the person” as a legal right rather than a fundamental right. If there is any such thing as a fundamental right, surely that is the right to life itself. Without this right we can have no others, since a person deprived of his rights is deprived of all other rights.
Now, we propose to re-title Section 2 as Fundamental Rights and Freedoms, to begin as follows:
Everyone has the following fundamental rights and freedoms: the right to life, liberty and security of person and property, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The other proposed subsections of Section 2 enumerating other fundamental freedoms should then be renumbered appropriately.
Mr. McPhee: Dr. Callahan.
Dr. Elizabeth Callahan, M.D. (Board Member, Coalition for the Protection of Human Life): I would like to deal with Section 15(1). This Section says everyone has a right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. This would allow discrimination on other grounds not listed here. For example, discrimination against the handicapped. Moreover, it leaves a serious loophole by failing to indicate who is meant by “everyone”. Thus it would permit the perversion of justice by the use of legal fictions as in the Dred Scott case in the United States.
Then, in 1857, the U.S. Supreme Court ruled that a slave was not legally a person and so not entitled to all the ordinary constitutional rights and freedoms.
In 1929 the Supreme Court of Canada ruled that a woman was not a person. and our Criminal Code in defiance of scientific fact and common sense, arbitrarily pretends that a child becomes human only at birth. We propose the following substitution:
Section 15(1) should read: everyone has the right to equality before the law and the equal protection of the law regardless of race, origin, sex. age, mental or physical capacity, religion, personal belief or any other distinction.
Section 15(2) should read: in this charter “everyone” means every living human being from the time of conception onward regardless of any other physical or mental condition, distinction or circumstance. Moreover, no legal fiction shall be used to deny any human being of the rights or freedoms set forth in this charter.
The right to life of the unborn child has always been a confusing issue, mainly because there was no agreement among the experts as to exactly when human life begins. This issue, and that confusion, have been resolved.
As early as 1967, at the first International Conference on Abortion held in Washington, D. C., world authorities in genetics, biochemistry, biology and medicine concluded that human life begins at conception. Only 20 per cent of these scientists were Roman Catholic, the conclusion being made on purely scientific grounds.
Dr. Bernard Nathanson, a well-known obstetrician who headed the world’s largest abortion clinic in New York, has completely reversed his views. He has changed his mind over the last decade because of new scientific facts. He says, and I quote:
It is atrocious for anyone now to maintain that a fetus is simply a lump of meat or something insignificant, or an unprotectable life.
He also says, and again I quote:
I have no religious views and never have had. All my opinions result from a secular scientific point of view.
An individual sperm cell or ovum is not regarded as human life. Both have life but it is the life of a specialized cell of the body of a male or female. It has a special function to perform but it is incapable of any independant development.
When the ovum and the sperm are united, then a new unique cell is formed with a whole entire genetic code never present before in any other human being. This fertilized ovum, called a zygote, is a completely new, very young human life. It is not a specialized cell of the mother. An adult is a human
zygote, a fertilized ovum, given only time, nutrition and a suitable environment in which to develop.
From the moment of conception the unborn child bears the undeniable stamp of a separate distinct person. Structurally and totally different from his or her mother, his or her own blood system, nervous system and genetic code. The baby depends on his mother for nutrition and for time. By denying his right to life we are denying him both.
I would like now to give the floor to Dr. DeVeber, a medical doctor from the University of Western Ontario.
Dr. Barry DeVeber, M.D. (Head of Pediatrics at University of Western Ontario): Thank you, ladies and gentlemen.
I thought that it might help you understand this problem we are wrestling with if I reflected with you my experience as a pediatrician in treating the newborn and also the unborn. in fact, what I hope to convince you of is, from my perspective, that the unborn child really has become a patient in medical circles.
Part of my training as a pediatrician involved the RH problem, which many of you may not be aware of or understand but was a severe public health problem about 20 years ago with one in a hundred pregnancies ending in severely affected or dead children. This problem results from a reaction between the baby’s blood and the mother, where the mother is not affected or not sick but the baby may become progressively ill throughout pregnancy.
In training in this problem back in the 1960s, I am sure I was thinking the way many of you are thinking. that although we can identify with the newborn baby and its problems, the unborn child in those days, certainly medically, was really a mystery, something very fragile, something we did not understand.
In treating this condition we first of all concentrated on what to do after the babies were born and we developed a technique for replacement transfusion which saved a lot of them, and was very encouraging. We then became aware that we had to get these babies out earlier in their development since the disease would be less severe and this involved using a technique called an amniocentesis where we could take fluid from the baby and study it and decide what to do.
This eventually led to the problem of what to do with babies who were going to die before birth and we could not help and Sir Arthur Liley, from Auckland developed the technique of transfusing these babies before birth which was quite a startling development in those days, although we accept it now. In this technique, quite simply, a needle was put through the mother into the womb and blood was put into the baby’s abdominal cavity while still in the womb.
This transfusion then which saved many unborn babies is the first and probably the only practical type of procedure that is done on the unborn and it certainly shattered my feelings and many others that the unborn was a very fragile individual who we did not understand very well.
I can tell you that when we first did these studies we were astounded to see these babies moving around, reacting to pain; the dye that we put in to study them, they would not like it, and would move around. They would react to the mother’s emotions, and it became quite clear to us that these unborn babies were reacting the same as you would expect a newborn baby, which really is only logical if you think of it for a minute.
Ultimately we developed a vaccine, I think one of the greatest stories in research in public health in Canada, we now have a vaccine which will prevent this disease and it is now beginning to vanish and this is a tremendous thing personally for me to see this happen, and in fact now I spend most of my time looking after children with cancer since the Rh problem is more or less, we hope, preventive.
I hope you can see that as this disease developed and as we treated it we had to focus more and more on the unborn child, and this has resulted now in a speciality in medicine called fetology and fetology is the study of the unborn. It has become a large scientific discipline, it is involved with both obstetricians and pediatricians. and in our centre, for instance, at London at St. Joseph’s Hospital we have a technique there where they can now visualize the baby’s heart beating at five weeks and see the baby moving and breathing at eight weeks. They are now using these techniques to try to predict which babies are going to get into trouble and they are teaching mothers to feel the movements and to correlate this with the breathing.
I think, through all this then, there is no question in my mind from my perspective that this unborn child has become a patient in a medical sense.
Along the way some interesting legal perspectives arose. It became clear at one point that we should try to take these babies out and transfuse them and put them back in again to see if that would work. As it turned out, this was not a practical technique. To use the old slogan, the operation was a great success but unfortunately the patient died, so we had to abandon this. It was an interesting legal point. As you may or may not know, in the Criminal Code of Canada a baby is not legally a person until it is out of the mother, even though the umbilical cord is not cut; as long as there is some sign of life and it is out of the mother it is a legal human being. During this procedure then, legally, the baby would become legal as
we took it out and transfused it and then as we put it back inside the mothers womb it would lose its identity, which I hope will illustrate that the law is really quite far behind medical science.
Also, the Jehovah’s Witness situation which I am sure you are familiar with, after birth as you probably know, if a baby is born who needs blood we now have legal mechanisms to take the baby away temporarily from the parents and give it blood. We tried and almost succeeded in one case in convincing the courts we should do this before birth because from my view, if the baby was inside the mother and needed blood and was going to die, why could we not do something about it. Must we sit there and watch it die, as we had watched several.
We almost had a judge convinced to do this when unfortunately the baby died. I know in the United States in at least three cases the courts have allowed an unborn baby to be transfused against the mothers objections, recognizing that this was an essential thing to do medically.
So I hope with these types of reflections that I have given you some indication of where the unborn child stands medically and scientifically today, and I can assure you this is a forward, rapidly developing science. This is not looking backwards, this is looking forward, and I would hope that as these developments continue scientifically and medically more and more people will feel the way I do that these individuals before birth, back as far as 18 to 20 weeks, at least medically are being treated as patients and studied and hopefully they will achieve some more rights in our Parliament and in our society.
To illustrate my remarks, and I realize you must have tons of paperwork and I shudder to think of what you must have to read through in these deliberations, having left a desk at home which was piled high with paper, I tried to do two simple things.
I have one sheet here which has “Sounding Board” at the top of it which has Dr. Nathanson’s remarks summarized and these first appeared in an editorial in probably the most famous and prestigious medical journal, the New England Journal. I can tell you when I read this editorial I was quite astounded, although I should not have been, that someone of his prominence who was personally supervising thousands of abortions would finally reflect on what was happening and change his views.
I also have a quote from Dr. Liley who is now knighted because of his work and who is probably the foremost authority on amniocentesis and he, at the end of a chapter describing all the things we can do on the unborn child, simply stated at the end of this chapter, and I will quote him here:
Surely, if any of us count for anything now, we counted for something before we were born.
This is coming from someone who really knows his individuals.
Finally, I think it might be important to note that the Declaration of Geneva, which I have reprinted here and which is used in many medical schools instead of the Hippocratic oath does make a specific reference, and I will quote it:
I will maintain the utmost respect for human life from the time conception even under threat.
I hope that these reflections will help the Committee understand why we feel that the child before birth must have some status or some rights in our society. Thank you very much.
The Joint Chairman (Senator Hays): Do you have someone else, Doctor? Are you ready for the questions?
Dr. DeVeber: No.
The Joint Chairman (Senator hays): I am sorry, go ahead.
Mr. Philip Cooper (Vice-President, Coalition for the Protection of Human Life): I am Philip Cooper. I am the Vice-President of the Coalition.
Any Charter of Rights should guarantee equal justice for all human beings. That is why we say that Section 15 of the proposed Charter does not go far enough. We want to see a section that clearly outlaws all discriminations not only against unborn children but against any group or individual. Accordingly it should go beyond just listing some forms “of discrimination and clearly prescribe all forms of discrimination.
That is what we have tried to do in our proposed substitution for Section 15(1) which reads as follows:
15(1) Everyone has the right to equality before the law and equal protection of the law regardless of race, origin, sex, age, mental or physical capacity, religion or any other distinction.
There has been some concern about the phrase equality before the law. We are not sure that the expression equality in the law would be any more immune to capricious interpretation in the courts. Perhaps we should say instead that everyone shall be judged and dealt with by the courts according to the same standards and requirements. We throw that out as a suggestion and I am sure someone will be able to improve it.
We are nervous about the affirmative action provision in Subsection (2) as numbered in the present proposed Charter. Although we are in favour of helping the disadvantaged, we are opposed to what is sometimes called reverse discrimination. Conceivably affirmative action in favour of one disadvantaged group could work to the detriment of other persons or groups no less disadvantaged. it might even be used to deny some persons the most basic protection of the law, to achieve some supposed benefit for some other person or group.
We therefore propose the following: renumber the Section as 15(3) and add the following words
. . . provided that such law program or activity shall not result in material detriment to any other person or group.
Section 1 of the proposed Charter has come under strong attack and quite deservedly so. At a previous hearing, someone called it the Mack Truck Section. We call it the bathtub section because it makes it much too easy for our leaders and lawmakers to pull the plug on human rights and freedoms and if it is included in the Charter the Charter itself will be worth very little.
Section 1 at present says:
. . . the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democractic society with a Parliamentary system of government.
It will be hard to think of any statement more dangerously vague than this. What is meant by reasonable limits and how is this decided and which democractic society and Parliamentary system are we talking about. Such language opens the door to entrenched present injustices merely because they are widely accepted in supposedly free and democratic societies, and moreover ties Canadian law to the laws and customs of other countries over which Canadians have no control; and to me this is most ironic. We are talking about patriating our constitution and while we are doing this we are proposing to be tied to precedents, set in other countries. it is hard to see what this has to do with producing a Canadian constitution or a Canadian Charter.
Let us consider some other countries, Switzerland, for example. Switzerland is usually regarded as a free and democratic country and it has a Parliamentary system but women in Switzerland are denied the right to vote. Consider another Parliamentary democracy, France. In France we are told an accused person is presumed to be guilty until he is. proven innocent. Are we willing to accept these arrangements in Canada?
In our own country we have seen all kinds of injustices generally accepted. One example is the legalized destruction of more than 400,000 unborn children since 1969. That is more than the total population of Ottawa. Limitations of freedom of speech and association are much too common.
For example, public servants are fired or suspended if they talk too much about public issues. A bank employee once told me that he was not allowed to join a political party. Various groups and individuals face financial penalties and other punitive actions if they take their human rights too seriously, what we like to think are our human rights.
For example we are appalled by current attempts by Revenue Canada to muzzle this country’s registered charities and educational organizations. These attempts have recently included the deregistration of the Manitoba Foundation for Canadian Studies because of the views expressed in its magazine, Canadian Dimension. Other groups have been threatened
with loss of their tax exempt status if they involve themselves in anything that smacks of politics or political lobbying. If they dare to embarrass the government or to pressure members of Parliament these groups are warned that they may face serious penalties.
The Coalition for Life has no tax exempt status and is therefore not immediately affected by these repressive moves, but many long established and respected organizations could be seriously affected, including our churches and groups like the Consumers Association of Canada and the Elizabeth Fry Society.
In our belief this kind of restriction has no place in a genuinely free society but unfortunately if Section I goes in it is almost certain to be regarded as a normal, generally accepted sort of thing. The argument is, well other people do it, and the standard argument we hear for example is if the government tries to prohibit criticisim by its employees, do other employers not do the same thing? Of course other employers do and it is wrong that other employers do this.
It is a dangerous principle to follow that whatever is done must be right and that is exactly what Section 1 seems to suggest here. For that reason we think it should be deleted and we suggested another Section which should be substituted for it. We realize that occasionally there must be limitations on certain human rights and freedoms but these should be very minimal limitations and they should be applied extremely cautiously, and we suggest this wording:
None of the rights and freedoms set forth in this Charter shall be abridged or suspended except when such action is necessary to preserve the security of the state and the force of this constitution. To have a lawful status and effect the necessity for any such action must be confirmed at the earliest practical opportunity by a vote of two thirds of the members of both Houses of Parliament.
We add an additional subsection which is inspired by the kind of restrictive action that I was talking about. That is:
No one shall suffer any financial penalty or other retributive action for exercising any of the rights or freedoms set forth in this Charter.
This would apply not only to government, it would also apply to employers. I once worked for a trade paper in Toronto where a union was organized and my employer called me into his office and he said you can join this union if you want to but if you do you cannot work for the Daily Commercial News. This makes a mockery of rights and freedoms. to say you can have all the freedoms you want but if you do you will not have a job, you will not have a livelihood. That sort of thing should not be permitted and that is the reason we suggested the addition of this subsection.
Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much. Is that your presentation, Doctor?
Dr. DeVeber: Yes.
The Joint Chairman (Senator Hays): Mr. McGrath?
Mr. McGrath: Mr. Chairman, first of all I want to congratulate the Coalition on what I consider to be an excellent presentation and, unfortunately we do not have enough time. Because of the number of witnesses that anxious to be heard we really cannot do justice to this kind of a brief, because your presentation was comprehensive and well prepared.
There are several questions that I would like to ask you in the same unemotional dispassionate way that you have presented your argument because I think if we do discuss this matter in a dispassionate, unemotional way I think perhaps we might make some progress.
I was interested, Dr. DeVeber, when you made reference to a medical procedure known as amniocentesis. It seems to me that one of the accepted, I suppose I could put it that way, criteria for therapeutic abortion was medical evidence which would indicate that the fetus was deformed or the mother probably contracted German measles, in those circumstances, that is the usual situation where therapeutic abortion is warranted. I see you are nodding approval.
But I understand that that same ‘procedure that you described in terms of treating the unborn child as a patient separate and distinct from its mother, that same procedure can and is used now to determine the sex of the unborn child. Is that correct?
Dr. DeVeber: Yes.
Mr. McGrath: I read recently of evidence where, by use of that procedure,’they could pretty accurately determine the sex of the unborn child and many women are showing a preference to having an abortion where the procedure indicates that they are carrying a female child.
Dr. DeVeber: Yes.
Mr. McGrath: Have you studied that and is this a growing phenomenon?
Dr. DeVeber: It is a growing phenomenon in the United States. Happily in Canada amniocentesis is more restrictive and I think most responsible centers will not allow amniocentesis just for the sex of the child. It is certainly happening in the United States.
By the way, although I was nodding I was not nodding approval of what is happening, I am nodding that I am in agreement that that is happening.
Mr. McGrath: No, no, I appreciate that.
Dr. DeVeber: I might say that having I suppose been a pioneer in the use of amniocentesis is with some regret that I find it being used not to treat or save the patient but to lead to his destruction which is really what is happening in the more current use of amniocentesis, but amniocentesis for sex identification is not happening in Canada. I suppose you could say that if abortion is available for any unwanted children why not
on the basis of sex. I do not agree with that, but that is the way it is.
Mr. McGrath: It is interesting because it seems to me that when you get into the business of what I would call a form of judicial homocide, for example, where a person could be disinherited by the use of a therapeutic abortion. a person being an unborn child, and there is evidence to indicate that that has happened, now you can perfect that system by the use of this procedure whereby for example if a son and heir is to inherit the estate by the use of this procedure a person can determine who would be the next in line to inherit, that the unborn child that that person in carrying was a male, and could under those circumstances have the child aborted legally and can thereby deprive it of its legal rights to inherit that estate.
Dr. DeVeber: That is right.
Mr. McGrath: Have you examined the whole business of abortion being used in this way as a means of depriving an unborn child of its legal rights and have you addressed yourselves to ways whereby, apart from whatever we may entrench in the constitution in terms of human rights, have you addressed yourselves in ways whereby using the very strong evidence that you presented to this Committee the unborn child can be protected before the courts.
Dr. DeVeber: As I said the use of amniocentesis for this type of procedure is considered irresponsible in most teaching centers, but it is happening and as long as the unborn really has not rights as it stands now then this sort of abuse will continue.
I have not studied the question of disinheriting but I am not surprised to hear that. I do know that legally an unborn child can inherit, in a legal sense, but I am not surprised to hear that someone would attempt to deprive a female child of that by abortion.
Mr. McGrath: It is precisely because there are precedents and cases where the courts have upheld the right of an unborn child in certain circumstances and thereby granted legal rights to the child. That brings me to Section 7, Reference has been made to Section 7 where it is stated that everyone has a right to life, liberty and security of the person.
It can be argued—and the question is—when does life begin?
You gave very strong scientific evidence to indicate that it began at conception, and there is a growing body of scientific opinion which accepts that principle.
Yet, our problem, of course, is with the Criminal Code of Canada, and that states that a child become a human being within the meaning of the Act when it has completely proceeded in a living state from the body of its mother, whether or not (a) it has breathed, (b) it has an independent circulation, or (c) the navel string is severed.
The question, of course, is therefore according to the law an unborn person is somehow not human; therefore if you abort that pregnancy before the person has a chance to breathe on its own, that you are somehow not taking away a human life.
Of course that argument leads logically and chronologically to the whole question of euthanasia.
When do you decide to withdraw life system from a person who is in a comotose state?
These are questions which quite frankly disturb me. Unless we address ourselves to the most fundamental right of all, which is the right to life, and the right of a person to be born after conception, then I think we are making a mockery of the whole business of human rights.
Dr. DeVeher: I meant to comment on the new born. I hope all of you will accept that the new born child has a right in the constitution. It has been suggested by one individual Sir Francis Crick, that we wait for a period of three days before we are granted this right. I know in some hospitals no more babies are being allowed to die by the wishes of the parents and doctors. So I am not convinced that even a new born child has complete right to life in our society, let alone the unborn.
I am glad to see individual legal cases leading towards recognizing the unborn; but we do not, obviously, have generalized constitutional right of the unborn right now.
Mr. McGrath: Perhaps you might be able to tell the Committee what is the practice or the tendency in Canada today, where there is an alarming growth in the rate of abortions. Abortions taking place later in terms of pregnancy stage?
Dr. DeVeber: Well, medically speaking, the early abortions are safer, so the move is to make them earlier.
The objection I have is that it is tending to force women into an early decision that they may not be ready to make. But the tendency is to try and make them earlier; but they are still happening as late as 20 weeks, and after that when the child is becoming almost viable and can live outside the mother.
Mr. McGrath: Have you had an opportunity legally to determine, or to obtain legal advice, as to the thrust of the rates of the unborn with respect to legal rights under Section 7 of the Charter?
The arguments presented to this Committee by the Advisory Council on the Status of Women, whereby they would recommend that we replace the word “everyone” in Section 15 by the word “persons”, presumably if you were to use the word “persons” instead of “everyone”, you are implying, somehow, legally that an uborn child, since it does not have the qualities of a human being in terms of the law and is not a person, and therefore there is no question of the legal right to abortion-are you following me?
Dr. DeVeber: First, I would object to that, unless the unborn is considered a person, I can tell you that most pregnant women consider their unborn child a person. That is just simple commonsense. I would hope if any move was made in this direction that the unborn child be considered a person also.
Ms. Handler: I would just like to say that I consider it very unfortunate that the Advisory Council on the Status of Women took that position.
We have already had a Persons case in Canada in 1929. You would not think that any group in Canada who knew what it was to be disadvantaged would want to so callously bring up the possibility again by going through this whole Persons business.
I think women’s groups have made a big mistake in taking the pro abortion position. Historically, it is not going to work, because at the same time that more and more is becoming known about the unborn child and the unborn child has more and more entered our lives as someone we can see and visualize, these people have gone more and more for the destruction of such children for various presumed or apparent social good.
I think the abortion issue has divided women across the country. Any opinion poll will show you that more women than men are opposed to abortion in all categories.
It has caused enormous dissension of all kinds between women’s groups. I think it always has been a mistake. It is very unfortunate, and I think they should just move with the times and recognize the rights of the unborn child.
Mr. McGrath: It is interesting that you should say that, because somehow those of us—and I make no apology for my position—who support the rights of the unborn child are projected or seen as somewhat in opposition or somehow in a position which is inconsistent with the rights of women. I reject that proposition, and I am glad you made the point.
Thank you very much, Mr. Joint Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. McGrath.
Mr. Robinson: Thank you, Mr. Joint Chairman.
I would like to thank the Coalition for its brief. As you have properly indicated, you are a nonpartisan organization, although I must say there was a very substantial representation in my own constituency of your affiliated members in the last federal election.
I have a number of questions with respect to the brief which you have submitted to us.
I would like to say, too, that I am sure that all members of this Committee share and respect and have reverence for life. I do not believe there is anyone around this table who does not believe that very strongly and who does not welcome the kind of advances in medical science that Dr. DeVeber has pointed to in terms of treatment and understanding of the development of the foetus.
Dr. DeVeber mentioned in passing. in response to a question by Mr. McGrath, that there was some reference to a growing phenomenon in the United States of women aborting because of the sex of their child. Frankly, I would be interested in seeing if there are any scientifically valid situations which would confirm that particular suggestion.
I would not ask you, Dr. DeVeber, to comment on that now, but I would certainly be interested in receiving those, if they exist.
As I say, we, around this table, share, I am confident, a respect and reverence for life.
I know that many of us are concerned about the fact that there are many abortions in Canada and that some of the reasons for those abortions are, of course, very disturbing; that a woman should have to decide on the basis of her economic situation, in some cases, or that as a single parent, because of the treatment of single parents in Canadian society, that a woman should actually have to decide at some point that she just cannot afford to keep a child. That is a tragedy in this society, that a decision of that kind should have to be made on economic grounds in some cases.
We also, of course, share the concerns which have been expressed about the lack of preventive measures in many cases to reduce the number of abortions in Canada; that if we are serious about reducing the number of abortions in Canada we have to be looking far more extensively at prevention, and certainly many of the recommendations of the Badgley report would go a long way in that direction.
You have noted in your brief—I have a summary of the brief here; there is no reference in the brief to abortion per se. I do not think the word is mentioned.
But I would presume that is the thrust of your particular submission. You have mentioned in your recommendations on Section 1, that you do not believe that the rights and freedoms should be subject to the kinds of limits which are generally accepted in a free and democratic society. Certainly we share the concerns about the sweeping nature of that exemption clause.
I would assume that the specific reason you would want that deleted is that there might be an argument that, because abortion and the right of women to choose on abortion, is presently permitted in Canadian society, that that would continue to be permitted under that particular wording. Would that be your reason for wanting that changed?
Mr. Cooper: If I may answer that, we are, of course, concerned with how this would affect the unborn child.
But as we say, we are appearing before you, not as some people would like to suggest, as a single-issue organization; we are a human rights organization concerned with the whole spectrum of human rights.
It is important to put the question of abortion in a total human rights context. We are opposed to Section I precisely because it puts all human rights in jeopardy.
That is the reason for our objection to that.
Mr. Robinson: You also make certain recommendations with respect to changes in Section 7 and in fact moving Section 7 to Section 2, out of the legal rights section into the fundamental rights and freedoms section.
Would you like to comment on a suggestion I would like to make with respect to the wording, even as you proposed it.
You propose it should be stated very clearly that everyone has, among other things, the right to life; but it goes on to state, and you include the right to property which is not in the present charter; it goes onto state that the right not be deprived thereof, except in accordance with the principles of fundamental justice.
Now, there will be those who argue that under that proposed wording our judiciary would be able to uphold the present laws of this country with respect to abortion on the basis that evidence has shown very clearly that in those jurisdictions where abortion has been banned that one of two things often occurs: that either women will in desperation—poor women—will go to what has been described as the back street butchers, or, on the other hand, they will attempt to induce abortions themselves, and that it would be completely in accordance with the principles of fundamental justice, as they are understood in Canada, to uphold the law which grants women the right to choose rather than which would deny any opportunity under any circumstances to have accessibility to abortion. Would you care to comment on that?
Dr. DeVeber: Well, there are two points. The statistics about illegal abortions have always been very difficult and even the pro-abortion groups now admit that they are wrong.
What happens in the case of a back street abortion is very difficult to get a handle on. In fact, illegal abortions have generally gone up in countries with widening of the laws paradoxically; I can prove that.
So I think that would be the main answer to your concern about illegal abortions.
The second thing. of course, is that women who are pregnant and trying to decide, should be supported. You alluded to this. I agree with that. There is a group called Birthright—and other groups—which would support and encourage women to carry their pregnancy once it has started. and hopefully have them adopt the baby where there are hundreds of couples waiting.
Our population of Canada is dropping, as you know. I do not think there is any such thing as an unwanted baby after birth in our country.
Mr. Robinson: In accordance with our concern for respect and reverence for life, that we would also be very concerned about respecting and having reverence for the life of the mother.
My final question on your brief is with respect to your proposal on the rewording of Section 15(2) to change the definition of “everyone”, which of course, refers also to the proposed Section 2, right to life.
I am assuming that you are aware that your proposals would mean that, under the proposed Canadian Charter of Rights, if a woman were raped or involved in an incestuous relationship, that, according to this proposal as you have worded it, that woman would be required to give birth to a child in those circumstances.
I wonder, if, because of the definition of “everyone” here, that were your intent, and if you are really suggesting that children who are born in those circumstances—and I recognize that an argument is sometimes made, at least I have heard the argument made that in cases of rape often there is not, in fact, conception; but in those cases where a child is conceived, that that child would have to be brought to term and also in the case of incest, according to your formutation of the proposed Charter this would indeed be required?
Ms. Handler: I would respond to that by saying, once again, we have to get back to the basics. If we are dealing with a human life in the womb, the situation is, of course, much more difficult than if we are not. If we are, then, the abortion of the child neither punishes the rapist, nor removes the fact of the rape.
Now, I think it is a very difficult situation. Certainly I can understand why someone who was raped would want an abortion. But, I do not think that the very rare possibility of somebody having to allow the child the result of a rape to live instead of aborting that child can be used to deny all the unborn children of Canada their right to live for ever and ever.
This is the way that pro-abortionists have usually attempted to use it. I think it is time we laid that to rest.
We have to face the issues seriously as they are. None of the abortions in Ottawa today which are taking place are likely to be taking place for rape or incest. They are taking place because people do not want the children they have conceived; I think this is the issue that we really and truly have to as we have a constitution.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Cooper: I wonder if I could make a comment?
The Joint Chairman (Senator Hays): Yes, Mr. Cooper.
Mr. Cooper: There is an old principle that hard cases make bad law. As Ms. Handler was saying, the incidence of pregnancy from rape is extremely low, and is a very small edge of the wedge which people try to push us into to legalize abortion for all sorts of often very trivial reasons.
I would like to comment also on the women who lose their lives.
Ten years ago, I made a very thorough study on the so-called statistics on abortions, and most of it turned out to be nothing more than mythology. There was a certain detective who was head of the so-called abortion squad in Toronto, who was quoted to the parliamentary committee which considered abortion, and he gave figures on deaths from abortion and the numbers of abortion; nowhere he say where he got those figures from. I wrote him and asked him what was the source of his figures. He wrote back and said that he had read them in the newspapers. That was the source of his figures. These figures were quoted in medical journals. I wrote to the medical journals asking where they had got the figures, and the reply was that they got them from the police. I wrote the police, who said, “Well, we got them from the medical journals”. Si ti was
a case of these people quoting each other; newspapers quoting each other.
Nobody bothered to read what the Dominion Bureau of Statistics had to say on abortion deaths.
In the most recent years there have been four deaths due to septic abortion and that sort of thing. These were what I call abortions performed for nonmedical reasons. But nobody, the politicians, the newspapers, the shrewd investigative reporters, none of them bothered to take the elementary precaution of going to the available sources we had.
On the basis of this mythology we are having these pleas that we must not sacrifice the lives of women by these restrictive abortion laws. Yet, four in most recent years. Last year more than 60,000 unborn babies killed.
How can we justify the killing of more than 60,000 unborn babies, because in a recent year four women died as a result of abortions and who might have been saved?
The Joint Chairman (Senator Hays): Thank you very much, Mr. Cooper. Before calling on Miss Campbell, I would like to inform the Committee that we have Mr. Epp, Mr. Fraser, Senator Connolly and Mr. Mackasey who would like to speak.
We are already out of time. I will have to be led by your direction. Miss Campbell.
Miss Campbell: Thank you, Mr. Chairman.
I would like to thank the witnesses for their presentation as well today.
I would like to go back to the question of the fundamental freedoms clause, Section 2.
Do you think that in Section 2, taking Section 2(b), freedom of thought, belief, and opinion or Section 2(a) freedom of religion, will that protect parties in hospital who have been pressured into assisting an abortion if this is entrenched?
Dr. DeVeber: I would hope not. I really cannot answer your question but I would think it is a genuine concern.
Miss Campbell: Perhaps you did not quite understand. I was looking for a clause in the Bill of Rights or in the proposal that would allow persons to refuse to assist, and you may have misinterpreted it.
Dr. DeVeber: I think that is an excellent idea. I would be in favour of putting that clause in.
Miss Campbell: Particularly if Section 1 over-rode any statute. So you could see that freedom of religion perhaps being, or belief that the . . .
Dr. DeVeber: I think belief is more important because there are more and more doctors I know who are against abortion on demand, not on religious grounds, but just because they believe it is wrong. So it would be beliefs of any kind.
Mr. Cooper: May I make a comment here?
When the present Criminal Code, the present abortion law was going through the Justice and Legal Affairs Committee
there was an attempt made to insert a conscience clause. Now, the then Minister of Justice, Mr. John Turner, said that this would not be necessary. He could not conceive of any doctor or nurse being required to take part in an abortion. Experience has shown since then that he was dead wrong.
Miss Campbell: I would like to then go on to Section 15, which is taking up a lot of time, and so it should. Would you be prepared to live with an equal rights clause, in other words without limiting or defining, everyone has the right to equal protection before and in the law without discrimination?
Mr. Cooper: Can I answer that one?
Miss Campbell: Yes.
Mr. Cooper: Probably that would be all right. I believe this is the position taken by the Civil Liberties Association and we would much prefer that kind of a clause to one which simply stipulated certain groups and which, by implication, excluded any attempt to protect people from other forms of discrimination. Does that answer your question?
Miss Campbell: Yes.
Mr. Cooper: What we have done is try to combine both approaches. just to give some guidance to the courts regarding questions which are especially prominent but not to limit the laws against or the prevention of discrimination in those particular cases.
Miss Campbell: I would like to then question you on your proposed Section 2. fundamental rights and freedoms, and that may be confusing but this is your proposal. We did talk about the other clause, too. just a moment ago.
What protection do you feel—you say, “and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, and I suppose i should go one step further for the public and say, “the right to life. liberty and security of person and property, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Where do you see capital punishment. where do you see the right to abortion in that, because, deprived thereof except in accordance with the principles of fundamental justice? You may have 75 per cent of the people voting for capital punishment or you may have people demanding that there be an abortion. Now, where do you see your clause excluding that?
Mr. Cooper: Well, contrary to accusations which are sometimes made, pro life people are not all bloodthirsty capital punishment advocates. I think a case can be made for saying that it may be necessary to have capital punishment in order to protect human life. This is it prudential question. If that can be shown, there may be some merit in that argument. Unless that can be shown, I would myself, and I think many people with me, are inclined to be opposed to capital punishment.
Miss Campbell: I will follow that further, then, because there were two questions in that. Do you then propose to the Committee that there are times when abortion can be had?
Mr. Cooper: Well, perhaps Doctor DeVeber should answer this, if he wants to deal with medical questions. What we are in fact acutely conscious of these days is that most abortions are not performed for anything resembling medical reasons at all. They are performed for reasons of social convenience.
Miss Campbell: Capital punishment might be for social convenience. too.
Mr. Cooper: It may be, but when we are dealing with capital punishment, and I am not advocating it, I want this clearly understood: I am not advocating capital punishment, but an important difference is that capital punishment, we hope, we presume is applied only when you are dealing with someone who is guilty of an offence. Abortion is the taking of innocent human life, that is a fundamental distinction. We do not take the lives of other people who are guilty of no offence whatsoever.
In the present arrangement we take the lives of, we say, 60,000 human beings every year where there is nothing resembling due process of law, and I wonder how many of you have read the abortion provision of the present code. It says that an abortion may be performed if, in the opinion of the therapeutic abortion committee, a womans life or health might be endangered, et cetera.
There is no way of testing this in the courts. It is, if in the opinion of the committee; in other words, they are the law, they are the judge and jury. .
Dr. DeVeber: I would just like to comment on SVEND Robinson’s comment: I really would hope nothing we would do would force anyone to do anything; my position is if we understand what is going on with the unborn child more, women would be responsible in what they are doing. That is all I could really hope for, I would not see us forcing anything on anybody. I do believe that if young women particularly understand what is going on with the unborn, they would be much more careful about what they were doing. and that would be a beginning.
Mr. McPhee: I would like to make one brief comment, to have on the record that Coalition for Life does not take a particular stand on the topic of capital punishment as an organization.
Also. as a supplementary answer to your question concerning the fundamental justice mentioned under Section 7, the subsection that we have added as a rider to Section 15 defining the word “everyone” again would apply, this is a definition that would apply throughout the entire Charter, so the word “everyone” under Section 7 would be from conception onward.
Miss Campbell: I would like to go on to another area of concern in having this group before me.
I personally feel that the unborn child. they do have parents. sometimes only one parent, but the euthanasia area and the mentally and physically handicapped area, I feel there is no protection and I wonder if you have figures readily on hand as to how many euthanasia or, the physically and mentally handicapped people whose lives are terminated, the deformed child at birth. I really do not have that much time and I want
to use your ability here, so if you have the figures, yes or no, and if not I would like to go on to one other question before my time is up.
Dr. DeVeber: I do not think there are figures. it happens.
Miss Campbell: All right.
The Joint Chairman (Senator Hays): This will be your last question.
Miss Campbell: Thank you. Going into the unborn child. do you have figures as to how many abortions are done in Canada, and I looked, let us say, at B.C., which is 11,271 were abortions committed in B.C., 30 per cent per hundred live births.
How many of those, and surely we must have some, was because prevention was not advocated at a provincial, or how many of those were because of a lack of birth control knowledge? I mean, we talked about incest and rape, but does your group petition the provincial governments for birth control, in your offices do you have to sign up, what is it all about?
Dr. DeVeber: As I understand it, we do not get involved with that. There are other organizations to deal with birth control. it is really important. Our position is really human rights and I do not think we are prepared to take on—that is a big problem, we do not have the resources.
Miss Campbell: Yes, but if there was birth control you would not have the abortion.
The Joint Chairman (Senator Hays): Thank you very much, Miss Campbell.
Mr. Cooper: I would be very interested to see if anyone could prove that the availability of birth control information prevents abortion. We know in the Scandinavian countries it certainly does not do that. The Scandinavian countries have an extremely high abortion rate. they also have mandatory sex education. they also have contraceptives quite freely available.
I am not here to oppose contraception or sex education, but I think we are naive if we think these things provide a very easy solution to the problem of abortion.
The Joint Chairman (Senator Hays): Thank you very much. I have four more people, would it be agreeable to the Committee if we heard Mr. Epp and Senator Connolly for some short questions so that we could go on to the next witnesses, or would you prefer we—is that agreed?
Mr. Robinson: I wonder, it would be understood, then, that the National Association of Women and the Law would have the full time that they have been previously allocated.
The Joint Chairman (Senator Hays): Yes. as usual.
Mr. Fraser: Mr. Chairman, I would ordinarily waive my position but I will not be long, I think this has been one of the most important presentations on a tragic human difficulty we
have in this country and I certainly want to ask a couple of questions.
The Joint Chairman (Senator Hays): All right. Well, that is fine, is that agreeable with the Committee?
Mr. Mackasey: What are we agreeing to? Are we agreeing to, Mr. Chairman, extended time or are we not?
The Joint Chairman (Senator Hays): Well, we are agreeing to listen to some short questions from the members that want to be heard.
Mr. Epp: Mr. Chairman, I would suggest that we have these witnesses before us until 12 o’clock, that is too short in itself, but until 12 o’clock and then the next group from 12 o’clock to 1 o’clock.
The Joint Chairman (Senator Hays): Is that agreed?
Some hon. Members: Agreed.
Mr. Corbin: Mr. Chairman, I am prepared to agree to that but I hope because some of us have made commitments for important lunch appointments, that there will be no procedural motions if some of us have to leave.
Mr. Epp: Mr. Chairman, I do not have any if the liberals do not.
Mr. Corbin: No problem, then.
The Joint Chairman (Senator Hays): Yes, Mr. Nystrom.
Mr. Nystrom: I just wondered if it was all right with the next group of witnesses that are to appear, the National Group on the Law. They were told to be here at 11:30 a.m. and if we are not going to hear them until 12 o’clock, perhaps this is a problem for them. I would suggest we just hear two more questioners and by that time we will be running at least 20 minutes overtime, out of courtesy to our next witnesses.
The Joint Chairman (Senator Hays): Well, I am in your hands.
Mr. McGrath: Well, let us proceed, Mr. Chairman.
The Joint Chairman (Senator Hays): All right. Go ahead, Mr. Epp.
Mr. Epp: Thank you, Mr. Chairman.
I want to also thank our witnesses for coming. I think, though, there are two points that have to be made. One, Dr. DeVeber, and I am pleased to hear your comments on this question, there is the medical question which I personally am not qualified to judge and I take your evidence and I thank you for it.
There is another question, and this Committee has dealt with it in some detail but not to my full satisfaction as yet, and that is that there is the moral law as well, I just do not believe society can function without a moral code. Someone said earlier in this Committee you cannot legislate morality. That is true to an extent. I raise that matter here, but in your testimony, while I am in hundred per cent agreement with your approach, that that is not the exclusive approach on this question, and I think that has to be kept in mind as well.
What concerns me, sir, is for those of us who have been looking at this question for some years now, that as we look at
it further it becomes, frankly, more complicated, for whatever dimension, either the medical dimension or the legal dimension or the moral dimension.
To what extent over the last decade, as we have had therapeutic abortions in Canada, and I am not defining it even though I might be tempted to, to what extent have we as a society moved closer to the whole concept of genetic engineering and euthanasia?
Dr. DeVeber: I believe we are moving closer, I believe the arguments and discussions about euthanasia and getting rid of handicapped people are very similar to what we heard from German doctors and philosophers in Germany, and I do not like to raise the spectre of Nazi Germany, I think they simply finished the job that was started by doctors and philosophers, and I see many parallels in discussions about not only the unborn but the newborn. I believe there is a movement in our society which is moving that way.
Mr. Epp: What about the aged or infirm?
Dr. DeVeber: I think the aged and infirm are being discriminated against, I think attitudes are changing about them, I think the whole attitude to the less than perfect person is changing and I think it is very alarming to me personally to see what is happening. I could expand on this at great length, but I believe it is happening and I could show you cases in nursing homes and in hospitals where older people are not being treated like someone who is 20 years younger. And I see it from teaching medical students, I am a Professor of Pediatries and I teach medical students, and their attitudes are changing, lean tell you. They want perfect people.
Mr. Epp: That is why I want to get into that and I know doctors do not want to testify against the profession or lawyers against their profession, but I want to ask you, in your own profession, those of us who are not members of that profession have always had, well, I guess I could put it this way: you people have had an aura about you that you are the people who hold our lives, at least in a medical sense, in your hands, and we are dependent on you.
In your profession is that attitude changing, that there are certain groups of people in society to which the Hippocratic oath or the responsibility to do everything in your power, not only to preserve life but to enhance life, is that attitude changing in the profession?
Dr. DeVeber: I think more and more physicians see themselves as responsible to society and they may do things which is against their own moral behaviour or feelings if they think society wants it, which puts the ball back in your court.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp. Senator Connolly.
Senator Connolly: Well, Mr. Chairman, I have not too much to say and I was going to pass up the opportunity but I think this presentation, which has been so clear and concise and forthright, is one of the best that we have had, and certainly nothing that we have had earlier on this subject, or even touching it, compares with what you have done here.
I take it that the fact that you have in Section 7 the reference to the right of everyone to life, but that concept is a desirable concept in your minds to have entrenched in a charter providing the definition of life is the one that corresponds with the discussions carried on in the earlier part of your presentation by Dr. DeVeber and by Dr. Callahan.
Now, what you do specifically suggest is that you enlarge it by an amendment to Section 15 which really defines life as beginning from the time of conception. I wonder what you think about the prospect of preserving or establishing your concept, perhaps not through the charter, leaving the word “life” as it is in whatever part of the charter you think it should be, but perhaps relying upon the courts to say that life is in being from the time of conceptions?
Mr. Cooper: May I answer that, Senator Connolly?
Our first inclination was simply to say that everyone shall have these rights from the first moment of life, but then we realized that some courts need to be given no room whatever to maneuver. They have to have things spelled out very, very clearly.
It is very interesting what happened in the United States earlier in this decade, 1973, and what happened in West Germany just two years later. In 1973, in the United States, the US. Supreme Court ruled that an unborn child was legally not fully a person. Two years later, in West Germany, an attempt to introduce a permissive abortion law was ruled as unconstitutional because it violated the right to life.
It is interesting that the German experience, interesting in view of what they have gone through, what they know, what they learned about the importance of the right to life. The West German court, we feel, acted much more wisely than the American court.
Someone was asking about capital punishment earlier. It is very interesting to compare the two Germanies. West Germany has no permissive abortion and no capital punishment. East Germany is very permissive of abortion and capital punishment.
Senator Connolly: Thank you very much.
The Joint Chairman (Senator Hays): One more question, Senator Connolly.
Senator Connolly: Yes, and I only have one more.
It arises from Dr. Callahan’s evidence where she described in medical terms what in fact the process is, and she said, as I have it in my notes, that once the ovum is fertilized there is a new genetic code established, and the ovum becomes no longer an ovum and the sperm no longer a sperm but the new entity is an independent entity.
Now, I think it is highly important for a materialistic group like a bunch of parliamentarians to say it this way, but I would like to suggest something and it arises out of what Mr. Epp has said. I think you have also, and this is more an observation than a question, I think you have also a great deal of backing from the proposition that Mr. Epp put to you that one of your strong arguments is the argument based upon morality, and really, for most people, that comes down to a question of
religious persuasion on the point of morality or on the issue of morality. I do not go quite as far as that, for you people, in your argument to establish the proposition that both doctors here today have given us so clearly and so beautifully, and that is that I think you are ignoring not the moralists but the philosophers. There is such a thing as a new, vital principal that scents to come into being at the time the ovum is fertilized. That new vital principal is not going to result in the production of an elephant or a monkey or a hen, it is going to result in the production of a human being, and that human being becomes human from the time that vital principal is instilled into that fertilized ovum or is present in that fertilized ovum, no matter how you do it.
I would suggest that that is a very basic kind of concept, it perhaps has more appeal to the practical minded people to whom you must address your arguments, more even perhaps than the problem of morality because morality does not always reach people.
The Joint Chairman (Senator Hays): Thank you very much, Senator Connolly. Mr. Fraser.
Mr. Fraser: Thank you. Mr. Chairman.
I will be brief and I am conscious that there are other witnesses waiting but I also think we have to understand that when there are important matters that a few more minutes sometimes helps to clarify things.
Just so that we do not spend any time arguing among ourselves about some basic principles, let me say that I have been impressed with what you have said and I have been impressed with the clarity with which you have said it.
Secondly, I have for a long time been trying to say to others who come to me on this issue that there may or may not be times when abortion is appropriate but please stop pretending that abortion is not the killing of a human life.
I want you to know that I think it is the taking of a life. It may or may not be justified under some circumstances, and that is why I want to ask you really just this question, this specific question.
If you amend by defining the word “everyone” as you have suggested in your brief and propose a new subsection to Section I5, and you say, and I am quoting:
In this charter “everyone” means every living human being from the time of conception onward.
Would that have the effect of making abortion under any circumstances unlawful?
Dr. DeVeber: I think the original law before 1969 allowed abortion to preserve the life of the mother. I think there may be situation where abortion maybe should be lawful or morally right. I am not going to comment on that. I simply would say again, that if we really understand and believe what the unborn child is, and give it some sort of status, it would have a better chance in our society.
If you would simply read this Life reprint, you will understand a lot more about this. and that is all I would ask for. As to which cases are legal or not is very difficult for me to comment on.
Mr. Fraser: Just one question arising from your answer. Can you show us, or do you have available any other countries’ constitutions or any other laws of any other country where a similar amendment has been in fact been entrenched into the law, so that we could look to their experience?
Dr. DeVeber: The closest thing is the West German experience. That is the only one I know of.
Mr. Fraser: Thank you, Mr. Chairman, and I want to thank my colleagues for their co-operation.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Fraser. Mr. Mackasey, for a short question.
Mr. Mackasey: I have a very short question and one very short observation.
I am a little puzzled as to why the Coalition for the Protection of Human Life are not out and out abolitionists in the whole case of capital punishment, and I think you should have a position, but I will not get into that.
Just for the record, under what circumstances does the Coalition for the Protection of Human Life condone abortion?
Mr. McPhee: Our position on that is that if in preventing the death of the mother, the baby’s life is lost, this is a sad situation; and that is the only circumstances under which the baby’s life would be lost.
Mr. Mackasey: We have heard this morning, however, that that is a very rare occasion.
Mr. McPhee: Yes, it is.
Mr. Mackasey: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey.
Mr. Cooper: One comment, Mr. Chairman. Mr. Mackasey was regretting that we are not out and out abolitionists of capital punishment. I do not wish to suggest that we approve of capital punishment at all. There is some division of opinion among pro life people generally but it is certainly true that the thrust of our philisophy is to outlaw all forms of killing, that is true.
All I was saying in my remarks was trying to point out how radically different the two situations are. In one instance you are dealing with innocent life and in the other case you are not dealing with innocent life. The situations are different, but certainly a serious issue is involved in both cases.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Cooper.
I should like to thank you on behalf of the Committee and my Joint Chairman. Mr. loyal, for your presence here this morning. You have given us something to think about and I certainly think all members of the Committee feel for the position that you have, anti we want to thank you very much for your brief and for being here and so ably presenting it this morning. Thank you very much.
The Joint Chairman (Mr. Joyal): I would like to call to the witness table the representatives of the National Association of Women and the Law.
It is my pleasure this morning to welcome on behalf of the National Association of Women and the Law. Ms. Deborah Acheson, Tamra Thomson, Pamela Medjuck, et Monique Charlebois.
I understand that you have already circulated a brief to the honourable members of this Committee, that you have agreed to have an opening statement and then answer questions from the honourable members of this Committee.
Ms. Deborah Acheson (Member of the Steering Committee. National Association of Women and the Law): That is correct.
The Joint Chairman (Mr. Joyal): Then, if you are ready, I would like to ask you to proceed.
Ms. Acheson: The National Association of Women and the Law is a national organization of lawyers and others concerned about legal issues as they affect women in Canada today.
The organization is comprised of approximately 20 member caucuses throughout Canada, and other individuals. The organization meets nationally biannually. During the interim period an elected Steering Committee provides liaison on a national basis with the member caucuses.
I am chairing this meeting with you today. My name is Deborah Acheson. I am the Steering Committee member from British Columbia; I am a lawyer in private practice in British Columbia.
With me at the table, to my immediate right, is Monique Charlebois. Monique is the member for Quebec of the Steering Committee. On her right is Pamela Medjuck. Pamela is the member for Halifax, Nova Scotia and represents the Atlantic Region. On her right is Tamra Thomson and Tamra is a member of the Ottawa caucus.
Also with us are Mary-Ann Nixon who is seated behind me, in the centre. She is the Steering Committee member for Ontario; Mona Brown who is the Steering Committee member for the Prairie and Margaret MacPherson of the Ottawa caucus.
As you can see we are representing here today women from across Canada. We made a special effort to have here for you today a cross section representation of women who are involved in the legal profession in Canada today.
We recognize. a number of advantages fall from entrenchment of a charter of rights and freedoms into our constitution. Firstly, it is symbolic and educational as a statement of the value placed on human dignity and integrity in our society. Secondly, an entrenched charter would bind both the provincial and federal governments to a uniform standard. We view that standard as exceptionally important.
Thirdly, by requiring adjudication by the courts. it would provide Canadians with an alternative forum to the elected legislatures for enforcement of their basic freedoms and rights.
However, we cannot and do not endorse the entrenchment of a charter as poorly articulated and substantively inadequate as this one. in our view the proposed Charter offers little protection to Canadians and will cement inequalities now existing within our society, particular insofar as women are concerned.
Although the expanded role of courts opens another forum for the adjudication of human rights issues, there are dangers to be avoided in granting the courts greater power. Canadian jurisprudence illustrates the Supreme Court’s reluctance and indifference when considering women’s assertions of their legal right and their right to equality.
If the courts are to be given strong powers in this area, then they must also be given strong and clear guidelines within which to exercise those powers. More importantly, the existence of the Supreme Court of Canada, the final court of adjudication of such rights, and its composition must, and I cannot stress this strongly enough, must be guaranteed in the constitution. You cannot have a constitution which sets up rights without having a court in which to secure those rights. For all we know it could be the governments intention to abolish the Supreme Court of Canada and have the Courts of Appeal of the provinces as the ultimate court of appeal.
I do not think that is very likely, but there is no guarantee in this constitution that we will have a Supreme Court of Canada. Judicially, women have looked to the federal government to protect their rights and we are looking to this government now and we expect some action on this constitution with respect to the question of the entrenchment of the Supreme Court of Canada.
This leads to a discussion of the Supreme Court of Canada and Section 1 of the Bill of Rights. Which will be led by Monique Charlebois, member from Quebec. Ms. Monique Charlebois (Member of the Steering Committee, National Association of Women and the Law): I will be dealing with the composition of the Supreme Court.
The present Supreme Court of Canada is composed of nine members, three of whom are trained in the civil law system. Proposals for reform of the court have included alteration to increase the representation on the civilian side to four members in a court of nine or to five members in a court of eleven.
Although the Supreme Court of Canada Act does not require it, practice has assured that a balance of members from all regions of the country are appointed to the court as well.
Yet, although women make up one half of the population, no such rule either legislative or procedural has been developed to ensure that women are represented on our highest court.
We take particular exception in fact to recent statements by Justice Minister Chrétien to the effect that qualified women are not to be found. The Royal Commission on the Status of Women recommended in 1970 that women should be appoint-
ed to all levels of the judiciary, particularly the Supreme Court. Since that time eight justices have been appointed to the court, all men. Despite the presence of outstanding women lawyers and judges in every region, no women have yet been named to the Supreme Court.
This is a significant ommission. We cannot stress that enough. Professor Beverley Baines, in a paper prepared for the Canadian Advisory Council on the Status of Women, described the problem as follows. A study of American cases carried out in 1971 is a case in point. The study analyzed a representative selection of American judicial opinions in which the judges were responding to allegations of sex discrimination. Their conclusions were that the performance of American judges in sex discrimination decisions ranged from poor to abominable.
The authors found particularly noteworthy the contrats between judicial attitudes in sex discrimination cases and those in race discrimination cases. They reported that although judges have largely freed themselves from patterns of thought that can be stigmatized as racist—at least their opinions in that area exhibit a conscious attempt to free themselves from habits of stereotypical thought with regard to discrimination based on colour. With respect to sex discrimination, however, the story is different.
Sexism, which is defined as the making of unjustified or unsupported assumptions about individual capabilities, interests, goals and social roles solely on the basis of sex differences, is as easily discernible in contemporary judicial opinions as racism ever was.
The Canadian Bar Association in its publication on the constitution Towards a new Canada justified diversity of membership on the Supreme Court in the following terms.
There is no doubt value in having members chosen from the various parts of the country, so that they can bring with them an understanding of the situations in which the law is to apply throughout the land. Defined representation for Quebec is justified because of the different legal system in that province. it also ensures that the Court is sensitive to the particular values of one of Canada’s major cultural communities. Law does not exist in a vaccuum. It must be interpreted and applied with a full understanding of the country and its people.
We doubt that a full understanding of the Canadian people is possible when only one sex is represented on the court. The need for such full understanding will become even more critically important when a court is charged with the duty of interpreting the charter and the guarantee of equality for women and men as it will be set out therein.
Our criticism of decisions on sex discrimination which have been issued by the Supreme Court will be discussed in greater detail by my consoeur, Pamel Medjuck.
We therefore recommend that the constitution guarantee a representative number of women on the Supreme Court of Canada. Women must be represented on lower courts as well. but the Supreme Court, as our final court of appeal, is of particular importance.
The appointment of women, of course, will in no way limit representation on other bases since women can be found in all regions of the country and since they make up one half of all ethnic and religious groups.
Our next item deals with Section I which we call the Mack Truck clause because a person could drive one right through it. We do not intend to dwell at length on this section which creates such loopholes in the legislation. Suffice it to say that we join with the continents of the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women, and the Canadian Civil Liberties Association and other groups in condemning Section 1.
I would just like to summarize a few of our objections. There are two main points. First, Section I applies at all times, it is not limited to emergency situations. Secondly, the standards of reasonable limits that are generally accepted in a democratic society appears to us to allow virtually any legislation passed by a majority in Parliament or a legislature.
Apart from concerns regarding the basic rights and freedoms which we share with other groups, we are concerned that this clause may have the effect of completely negating the protection provided by Section 15 on equality of rights.
Certainly, after the regulations which the federal government imposed after World War II forcing married women out of the public service were generally accepted at that time. With the expectation that unemployment will only increase in the next few years a repeat of such discriminatory treatment of people is quite possible. Already the Economic Council of Canada has recommended an income tested unemployment insurance scheme which would disentitle 90 per cent of married women.
Furthermore. the limitation clause in the international Covenant on Civil and Political Rights to which Canada and all of the provinces are signatories is much more strictly worded, as I am sure you are all aware by now. it clarifies that some rights may never be abridged, not even in war time.
We would suggest that Article 4 of the UN Convenant be a model for Section 2 of the Charter.
There are several essential components which we believe should apply. One, rights can be limited only in an emergency; secondly, the government must have articulated that an emergency exists to exempt any modifications from the Charter. Thirdly, the existence of an emergency is an objective situation which the court must assess and the onus would be on the government to establish that such a situation exist. The standard is to the extent strictly required by the exigencies of the situation. That was the fourth one.
Fifthly, some other rights are protected in all situations, including the right to equality.
In fact. the difference between Section I of the proposed Charter and Article 4 of the International Covenant on Civil and Political Rights is so significant that we believe that the proposed Section 1 would place Canada in a breach of her obligations under this covenant.
We also recommend that the Charter include a purpose clause which should be similar to the wording to article 3 of the United Nations Covenant on Civil and Political Rights.
Such a clause would undertake to guarantee the equal rights of men and women to the enjoyment of civil, political and economic rights set forth in the Charter. The adoption of such a section at the beginning would reflect the intent and spirit of the Charter and provide an over-riding statement of principle to be used in its interpretation. Any ambiguity, for example, in Section 15(1) could be clarified by reference to the over-all purpose set out in Section 1. Any limitations on the rights and freedoms should be severed from this basic guarantee and placed in a separate section. It should be, again, in the form of Article 4 of the International Covenant to which I have already referred.
The next matter is an important question of legal drafting. We are concerned about possible problems of interpretation arising from the use of the word “everyone” throughout the proposed Charter.
While the terms “persons” and “individual” have been defined in successive decisions, the meaning of the word “everyone” or “chacun” has not been settled, which adds an unnecessary clement of uncertainty in future litigation.
Again, we find ourselves in agreement with the comments of the 1975 Joint Committee on the constitution—a Joint Committee of this Parliament which said:
While the words “individual” and “person” refer to the natural entity, we believe that it is the human person that is the proper subject of rights and freedoms. The word “individual” connotes the individuation or distinctness of the human being, but not his or her dignity. We are also troubled by the limitation to natural persons or individuals of the right to the use of employment of property, and the right not to be deprived thereof except in accordance with the law. We can see no primafacie reason why corporations and groupings of persons should be denied this protection.
The British North America Act used the word “person” in relation to qualifications for the public office of senator and that in 1929 the judicial committee of the Privy Council overruled the Canadian Supreme Court to hold that this concept includes women.
In view of the difficulties which would be caused by the introduction of such vague terms as “everyone” and “chacun” it is recommended that the phrase “every person” “toute personne” be inserted in its place wherever it occurs in the Charter.
Ms. Deborah Acheson (Member of the Steering Committee, National Association of Women and the Law): Gentlemen, there is another important aspect of language, and that is the use of the word “distinctive” rather than “discrimination” in the drafting of this Bill.
We are suggesting that the word “distinctive” should be used in Section 15. The value-charged word “discrimination” implies something bad. Much of the discrimination which offends women may be fairly described as paternal benevolence. We are treating them well, but differently.
This brings us to a discussion of Section 15, and that discussion is going to be led by Pamela Medjuck from Nova Scotia.
Ms. Pamela Medjuck (National Steering Committee, Nova Scotia): First of all, a point we would like to bring up, though not of great significance to the public but is of significant legal interpretation concerns the title of Section 15. In the Charter the government proposes, the title is Non-discrimination Rights. We believe it would be helpful to subsequent legal interpretation if the title were equal rights. We would like to avoid the use of a negative term which does not set out the affirmative standard that Section 15 is aspiring to.
Therefore, we recommend to the Committee that the title of Section 15 be changed to equal rights. The problem with Section 15 is basically in the wording. Section 15(1):
15.(1) Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.
We find there are two grave problems with the formulation of Section 15, as it now stands. The first, as I have said before, is the narrow, restrictive manner in which the principle is set out in the title.
But the second problem is more substantive, namely, the lack of guidelines to the courts which will be interpreting the Charter.
“Equality before the law” is a phrase used basically as a fundamental guarantee to all Canadians. The first right granted in this Section is this right to equality before the law. We believe that wording of this kind has already been interpreted in the Supreme Court of Canada, as in the cases of Bedard and Lavell, to mean equality in the administration of the law and not in the content of the law itself. Such a restrictive meaning of equality allows blatantly discriminatory laws to stand so long as their application in the ordinary courts is equal.
Some have suggested that an interpretation of the phrase “equality before the law” in the context of the Canadian Bill of Rights, has been so narrow because it was a mere statute and that a more generous interpretation will be given to this clause once it is entrenched in the constitution. An examination of the two leading sex inequality cases; Lavell and Bliss, however reveals that the decisions of the Supreme Court did
not turn on a difference between a statutory and a constitutional standard of equality.
We are therefore not at all confident that the Supreme Court will begin to interpret this clause in a broader way simply because it is entrenched.
I think the point is important to be made that entrenchment itself is not a protection. The protection for equality comes from guidelines clearly articulated in a charter. We believe that Section 15 does not set out these kinds of guidelines. Quite the contrary, in our view, these words are likely to receive exactly the same interpretation after entrenchment as before.
This, after all, is the message being given to the court by entrenchment of the same words.
Any progress in discrimination cases will therefore rest upon the second “guarantee of equality” in Subsection 15(1): “equal protection of the law”.
To sum up, as far as equal protection before the law is concerned, we do not feel that these words have been successful, and unless they are changed, we do not feel confident of any future success.
Now, with regard to equal protection and benefit of the law, Section 15(1) also promises the equal protection of the law. Again. this wording is substantially similar to the present Canadian Bill of Rights with the addition of the word “equal”.
Since the words “protection of the law” have not been interpreted to add to the right of “equality before the law”, any new right encompassed by this phrase must be found in the addition of the word “equal”.
We do not believe that this subtle change in the wording of the equality clause will be sufficient to overcome the past restrictive interpretation given to the words “equality before the law and the protection of the law”.
The principle should be generously and broadly stated so that there is no doubt whatsoever that the purpose of the Section is to guarantee to every person their human right to equality in the fullest sense.
We are concerned that the word “protection” is too restrictive because this ordinary meaning would not include “benefits” or “privileges”.
When the phrase “equal protection” was included in the American constitution in l868, in the 14th Amendment, there were no social welfare benefit programs around at the time. Now we have these programs. We think we should avoid the problem of the litigation the Amercians are facing in trying to broaden the word “protection” to include in the constitutional guarantees, benefits. We should learn, from their experience that the courts have had a hard time in stretching that concept. If Canada is taking the opportunity now to offer protection and benefit, it is not too demanding to ask that those words be included.
Also, because the courts have tended to take a strict and very literal interpretation of human rights in Canada, we think that every possible mechanisim for guiding them and directing
them how to interpret the Charter should be made available. Including the word “benefits” does this, and it is not difficult to put in a few words.
We therefore recommend that the words “and equal benefit” be added after “equal protection” in Section 15(1).
The next problem is the legal standard problem. No guarantee of equality is ever absolute. The court does have an inherent power to define the boundaries of any rights in the Charter.
For example, we are all willing to include protection for freedom of speech, and yet we do not ever intend this to include freedom to defame others or to slander others.
Rights do exist and are propounded in an absolute sense, but aspects could never be existing in it, so we have to give our court direction as to how to restrict them and when.
Thus, the court will have a duty when interpreting Section 15 to determine which distinctions amount to discrimination and which are reasonable and should be allowed,
The American courts have developed a “suspect classification” test in relation to discrimination on certain invidious grounds. For example, race can rarely form a proper basis for differential treatment in law. In such cases the onus is on government to prove a compelling state interest for the distinction in order for the law to be upheld. The court must not only evaluate the purpose of the legislation, but must also determine if the purpose could be achieved in another nondiscriminatory way.
However, a maority of the American court has not yet applied this “suspect classification”, sometimes called “strict scrutiny”, test to distinctions made on the basis of sex. It has, rather, adopted a middle test somewhere between “strict scrutiny” and “reasonable distinctions” to apply to sex inequality cases.
Professor Beverley Baines has identified five different tests which the Canadian courts have developed to aid interpretation of the equality clause in our present Bill of Rights. The best of these appear to resemble the “reasonable classification” test which the American court applies to cases of discrimination on grounds other than race or sex.
The Canadian court has never applied the “strict scrutiny” test in any discrimination case.
Because immutable characteristics, such as sex and race, are unrelated to the ability or capacity of a person, we believe that a strict standard must apply to them. in the words of the paper presented by the Canadian Human Rights Commission, distinction should almost never be made on these grounds. We would like to point out, while we do support Mr. Gordon Fairweather’s comments that these distinctions should never be made, we cannot agree with his recommendation which includes that age should be included with race and sex. We do not believe that. Otherwise we are supporting his principles; not the wording of his recommendations.
To ensure that our courts will take this approach, we believe it will be necessary to clearly state the standard in Section 15.
We therefore recommend that Section 15 specifically provide that a compelling reason must be given for any distinction on the basis of sex, race, national or ethnic origin, or religion.
Regarding other prohibited grounds, age, physical or mental handicap, marital status, political belief, sexual orientation and previous conviction, we would emphasise that not all “inherent” classifications are necessarily invidious, to use the American term. The example of age comes immediately to mind. While some legal distinctions on the basis of age are improper and therefore ought to be prohibited by Section l5, many distinctions based on age are perfectly appropriate because they fairly relate to different levels of capacity.
It is appropriate, for example, for children who have been convicted of committing criminal offences not to be given as severe a penalty as adults. Equally, we do not want to have the ‘vote in Canada extended to children four years of age. These types of reasonable distinctions are acceptable in law.
This is not to say that unfair, unreasonable distinctions on the basis of age should be tolerated.
Certainly Section 15 should forbid discrimination on this ground. Our point is that the judiciary should apply a different, a more stringent, test to laws which distinguish on the basis of the invidious or the suspect categories, such as sex or race, than to laws distinguishing on other bases, age, handicap, et cetera.
To achieve this, Section 15 of the Charter must make it clear that a suspect classification test, that is, a strict scrutiny test, should apply to certain types of discrimination. To fail to do so will result in this standard for all differential treatment being reduced to the lowest common denominator, i.e. the reasonable classification test,
A number of grounds which should receive judicial scrutiny have been left out of the Charter. The more obvious ones are: marital status, physical or mental handicaps, political belief, sexual orientation and previous conviction. It is important to include marital status because often discrimination against women is disguised in this form. The language of Section I5 should permit the court to scrutinize legislation on these grounds. The present wording of Section 15(1), because it provides a finite list of prohibited grounds, will not permit the necessary expansion.
In addition, new ground may be recognized in the future which we cannot now anticipate. To achieve this, either no list should be included in Section 15(1), or words such as “on any ground including” should be added before the list to clarify that it is not all inclusive.
Our first preference would be to include no list at all to provide for the more expansive possible application of the
section. However, we do recognize the concerns of groups such as the mentally handicapped who may prefer the protection of a list of ground which includes them.
The difference in the terms “any distinction” and “any discrimination” is very significant to our point of view. The value-charged word “discrimination” should be avoided if at all possible. Problems have arisen in interpretation of the word “discrimination” in that courts generally feel that they must find that the complaining party has been subject to harsher treatment than others. in the Burnrhine case, 1974, the Supreme Court of Canada upheld the provision under the Juvenile Delinquence Act which imposed a much longer term of incarceration on a young person than an adult could have received for the same offence, on the ground that he was benefiting from a longer period of rehabilitation. The” word “distinction” here would squarely focus the courts on the primary issue: differential treatment of persons in like circumstances.
I am just going to read now the recommended wording that we are putting to the Committee for Section 15: taking into account all of the points raised, we therefore recommend that Section 15(1) be redrafted in two subsections using the following approach:
Our first preference would be:
Section 15(1) every person shall have equal rights in law including the right to equality before the law and to the equal protection and benefit of the law; and
(2) a compelling reason must be shown for any distinction on the basis of sex, race, national or ethnic origin, colour or religion.
We prefer this because it is much cleaner. The only restriction mentioned in it is the compelling reason. it is an affirmative statement and not a negative denial on certain grounds.
However, another acceptable formulation would be:
Section 15(1) every person shall have equal rights in law, including the right to equality before the law and to the equal protection and benefit of the law without unreasonable distinction on any ground including sex, race, national or ethnic origin, colour, religion, marital status, age, physical or mental handicap, sexual orientation, political belief and previous conviction; and
(2) a compelling reason must be shown for any distinction on the basis of sex, race, national or etnic origin, colour or religion.
Just to reiterate, we do prefer the drafting, I said it before, but my second suggestion is preferable to the present one, so if we have to be denied our first preference, we will take the second preference over Mr. Trudeau’s offer.
This approach includes several important improvements over the proposed draft, and just to summarize:
1. The emphasis is placed on equal rights in law;
2. equality of benefits is guaranteed as well as protection;
3. new grounds can be added since there is no list, or else an open-ended list;
4. a strict strutiny test will apply to distinctions on the traditional grounds of race. sex. national or ethnic origin. colour or religion.
5. The court may apply a strict scrutiny test to the other grounds or reasonableness test as circumstances warrant.
Ms. Acheson: That then brings us to a discussion of the affirmation section and the sections respecting native women, evidence and legal rights which will be led by Thamra Thomson, of the Ottawa Caucus.
Ms. Tamra Thomson (Ottawa Caucus, National Association of Women and the Law): We are speaking now of Section 15(2) in the proposed Charter. This grants the right to have affirmative action programs. and of course any meaningful guarantee of equal rights for women must not preclude the methods necessary to overcome the cumulative effect of past discrimination. Therefore, we have a necessity for affirmative action programs. However, these programs are necessarily an exception to the specific prohibition against distinction. Therefore, any exception must be very tightly worded so that it does not subvert the first function of the equality clause which is specifically to prevent distinction and discrimination.
The wording which we have recommended is set out on page 14 of our brief. It reads as follows:
Nothing in this Charter limits the authority of any Parliament or the legislature to authorize any program or activity designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by any group of individuals when those disadvantages are or would be based on or related to sex, race or other ground protected under Section 15(1).
I would just like to go back to the typographical error which does appear in the brief, on the sixth line of the recommendation. It should read “group of individuals”.
We feel that this proposal has many advantages over the proposal in the Charter. First of all, it expands the affirmative action section to nothing in this Charter. This parralels the wording of Section 16(2) which allows for the extension of language rights.
Secondly, it requires that any proposed affirmative action program first be scrutinized by government, and of course this is important so that any means of getting around this is tightened up, the government first of all has to scrutinize the program.
Thirdly, the proposal limits affirmative action programs to disadvantaged groups and not to disadvantaged individuals.
And fourthly, and possibly most important, there is nothing in this Section 15(2) of the proposed Charter which relates the disadvantaged groups which an affirmative action program is supposed to relate to, back to the grounds of prohibited distinction in Section 15(1). We feel this is a serious omission because it could permit, for example, the program to overcome
regional disparities which could discriminate on the basis of race or sex. So by referring the affirmative action subsection back to the prohibited grounds we would ensure that this problem does not arise.
I would like to move now to Section 24, which guarantees certain undeclared rights and freedoms, specifically those of native persons. Now, we are very concerned about this section because we feel that the stated intent of this section is to maintain the status quo of native rights in Canada. This of course would carry over the discrimination which is inherent in the Indian Act, which discriminates against Indian women who marry non-Indian men.
This section is not adequate to overcome that discrimination. We feel that it must be changed to include that such rights pertain equally to native men and native women. That was just a very brief rundown of Section 24.
I would now like to move to Section 26, which deals with the laws respecting evidence.
Section 26 as it reads now denies the application of the Charter to laws of evidence with the exception of Section 13, which is the right to not incriminate yourself in certain legal proceedings. We note that this section was apparently included to avoid the introduction of the poisoned fruit doctrine, ie. that illegally obtained evidence cannot be introduced in court against an accused.
First of all, we question whether the present law as it stands, that such evidence can be introduced, should be allowed to stand. It is abhorrent that the law enforcement agencies do not have certain checks on them to prevent them from gathering evidence illegally. Furthermore, the section goes much farther than is necessary to prevent this doctrine from being introduced and in fact anything in the Charter could be subverted through laws of evidence.
For example, a law could be passed that denies the presumption of innocence. A law could be passed that gives a different standard of proof for women as opposed to men or a certain racial group. This is a very serious defect in the Charter, as we see it.
Furthermore, just relating to evidence, we note that going back to Sections 8 and 9, the legal rights concerning search and seizure and detention and imprisonment, such rights are guaranteed in the Charter but they are permitted to be subverted by any procedure established by law. This would allow any legislature or parliament to subvert either of these legal rights, not to be subjected to search and seizure or not to be detained or imprisoned. We see this as another very important failure to guarantee rights within this Charter and therefore they should be amended to take out the provision which says “in accordance with procedures established by law”.
The Joint Chairman (Mr. Joyal): Thank you, Ms. Thomson.
Ms. Acheson: That bring us to our conclusion and we are left with two matters which we feel must be stressed.
The first one is the proposal contained in Section 29(2), that there be a three-year delay with respect to the bringing into force of Section 15. Speaking as a lawyer who has been involved in two appeals to the Supreme Court of Canada, I can tell you from my personal experience, the first one took three years and the second one took five years to wend its way front the Supreme Court of British Columbia to the Supreme Court of Canada.
The proposal contained in Section 29(2) means that even if this were brought into force next year, we are then talking about a six-year delay until we have a legal pronouncement from our highest court, and that is simply not acceptable. I have an alternative proposal.
It seems to me that it would be quite simple to use the sort of procedure that one uses in the Crown liability acts, that is where a prospective litigant wishes to sue with respect to a declaration under Section 15(1), the litigant gives the government three months notice of the intention to issue a writ. The government then has three months to consider its position and decide whether or not it is going to make the necessary amendment. It is simple and it is effective and it would bring immediately to the attention of the government those areas of urgency which were of great concern for those people suing, and would result in having legal decisions within a much earlier period of time, and if we are going to enact the Bill of Rights, for heaven’s sake, let us get on with finding out what it means.
The next comment that I would make is that a number of the comments we have addressed to you today are technical. They have to do with legal drafting and I would like to say that over-all what we are attempting to do here is to achieve legislative certainty as opposed to legislative ambiguity, which is what we view the present proposal as containing.
Finally, I am going to make one comment on the process of constitutional reform. This is the only comment that we are going to make because we hope that you will address us on the substantive issues that we have brought before you today, but we feel it is important to put our position on the record and our position is simply this: we would prefer to have a constitution made in Canada through the process of constituent assembly.
We are now prepared to answer any questions which you may wish to direct to us, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Ms. Acheson. I would like to now call on Senator Duff Roblin.
Senator Roblin: Mr. Chairman, if I could offer a personal observation, I should like to express my warm appreciation for the closely reasoned and well-supported document that we have received this morning. I found it very stimulating. I do not promise to agree with every word that is said in it but I respect the quality of the observations that are made.
I would like to dwell, but I shall restrain myself, I should like to dwell on your last point, namely the perils that are involved in unilateral action that the federal government is now embarked upon and I will simply observe that you and I share the same opinion on that point, and reinforce it by
saying that if these rules are to be binding on the provinces as well as on the federal government, it is obvious common sense, I would suggest, that the provinces should be involved in the process as well as the citizens of Canada that you refer to as well.
I would like to draw you out a little, perhaps. on one of the observations you make concerning entrenchment, because you pose one of the dilemmas of entrenchment when you say that although the expanded role of the courts opens another’ forum for the adjudication of the human rights issues, there are dangers to be avoided in granting the courts greater powers. You make some very good points about the dangers of an insensitive bench who perhaps find themselves unable to deal as imaginatively as some of us would like with the problems before us. I recall that I think it took the Supreme Court in the United States, where there is an entrenched Bill of Rights. what is it, 40 or 50 years to decide that separate but equal was not equal and that only equal is equal. I think that underlines very clearly one of the dangers we have in placing too much faith that the courts are going to solve all our problems. Maybe there is an advantage in having this entrenched feature but we must be aware that we do not become disillusioned with some of the results that we are going to get.
However, I notice that you have at least one proposal to make that might improve that situation and that is to add women to the Supreme Court Bench. I wonder why that has not been done. I imagine that the Canadian Bar Association is invited to propose names from which the Ministers may choose. I do not know whether it is confidential, I suppose it is, but do we know whether any women have ever been recommended by the Canadian Bar Association for appointment to the Supreme Court?
Ms. Acheson: Well, I think I would like to answer part of your question and direct the part of your question concerning women to Monique Charlebois.
With respect to the first comments you have made, I should stress that the concern is not only an insensitive bench, and I would not use the word “insensitive” myself to describe the Supreme Court of Canada. The concern is that the Bench have clear guidelines. You cannot expect the court to operate in a vacuum, which is what the present proposal does. You have to indicate to the court what the standard is that you expect the court to supply to you in their decisions.
Now, Monique Charlebois will answer your question with respect to the appointment of women to the Bench.
The Joint Chairman (Mr. Joyal): Ms. Charlebois.
Ms. Charlebois: Senator Roblin, you are right, the process is confidential so that we are not aware, personally, whether any names of women have been suggested as appointments to the Supreme Court. Certainly we would like to be involved in the consultation process. As it now stands it is strictly between the Minister of Justice and the provincial bar associations, and you are all aware of the old boy’s network.
We would be very pleased to provide the Minister of Justice with names of very qualified women lawyers for appointments to the Bench.
Senator Roblin: Well, I hope he gets around to asking you for such a list, but I accept the observation made about my use of inaccurate language, the insensitive court, and that is quite right and I see the point, the question of guidelines, that we must really devote ourselves to if we expect to get better results from them.
Coming to that point about guidelines, I would like to express my real interest in your proposals to change Section 15. That has to be one of the most important sections of this bill and I am much attracted by your first preference that you read out to us a little while ago because your preference for Section 15(1) I think clearly sets out the overriding goals that we are seeking here, in a much more satisfactory way than the rather negative way in which it is phrased in the bill itself. I also like the way you have divided the two principles of equal rights and then reinforced it with Section 15(1), which comes under the heading of compelling reasons that must be advanced.
My problem with the way it is written now is that it is limited to certain subjects such as race, sex, colour, national or ethnic origins, religion and so on, but I suppose it is conceivable that there may be other rights which might be included under a rule of compelling reason. Would it be possible to add a phrase like “or the like” or some phrase like that, that would indicate that we are not necessarily limited to those specific categories that you show there? Is it possible to get a more flexible approach?
Ms. Acheson: Yes it would be possible to draft so it said that a compelling reason must be shown for any distinction including the following categories, some words to that effect. I have not quite addressed myself to it.
All we are doing in Section 15(1) is setting a standard through those cases where discrimination can almost never be justified and we are leaving it open to the courts discretion to decide whether it will use a compelling reason test or a reasonableness test with respect to the other cases.
Let me give you an example of that. If the question is a 10 year old child bringing an action before the court on the basis that child wants to drive and it is not fair he or she be treated differently then I think the court is entitled to use the reasonableness test. It is simply not reasonable for 10 year olds to be driving around our streets.
A good example of where we might find the court saying no, the test is a compelling reason test, is where you are faced with the 65 year old mentally capable person who is being required to retire. I can see that it might be open for the court to say this person is no different today on her 65th birthday than she was yesterday when she was 64 and 364 days old, therefore a compelling reason must be shown to discriminate against this person. If you take that one step further, we have legislation which requires people who are over the age of 65 to take a test
before they can drive, they have to show that they have the appropriate eyesight, in British Columbia. Again I think one would revert back to the reasonableness test; so what we are saying is the court should be left flexibility.
One of the questions that is often addressed at this point is the question of the physically handicapped person. Why should not the compelling reason test apply there. There is a very good reason, because you want to be in a position to make some discrimination in respect to a physically handicapped person. You want to be able to pay additional benefits to that person; you want to be able to require three apartments in every housing complex to be accessible to physically handicapped persons. So the court needs more flexibility to deal with those issues and we do not want to hamstring the court. We want to show the court what our goal is, our ideal is a compelling reason test, but at the same time that you give the court a standard, you must give the court responsibility to act judiciously.
We may come here sounding as if we are criticizing the court but we are also lawyers and I have great faith in the judicial system to do the proper thing provided the proper guidelines are given.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Roblin. Monsieur Robinson, and I want to point out that our time is almost over so if you can restrict your questions I might be able to recognize other speakers on my list. Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman, and I would like to thank the National Association of Women and the Law for what is certainly an excellent brief and many points which have not been fleshed out to the extent that you have fleshed them out have been made here and it is very useful to us to have the material before us.
I would like to take up a couple of points which you have made and which have been alluded to by Senator Roblin, The first point is with respect to the matter of appointment of judges. You suggest that there should be a representative number of women on the Supreme Court of Canada Bench, and certainly I strongly support that suggestion. There were some references made to the appointment process and in fact you may be interested to know that the present appointment process involves not the provincial bar associations but a special committee of the Canadian Bar Association, the National Committee on Judicial Apointments, which coincidentally is made up of all men, and that committee has no power to make any recommendations to the Minister for apointments but merely can react to recommendations made by the Minister of Justice with respect to appointments to the bench. That is the present process and certainly we recognize there are serious deficiencies in that process.
With respect to your suggestion, however, i wonder if you could just elaborate on what it is you mean by representative number of women on the Supreme Court. I go on the basis of
population. Do you mean five out of nine, or what do you mean?
Ms. Charlebois: 52.4 per cent.
Mr. Robinson: 52.4 per cent, thank you.
This is just a small point perhaps but we had a delegation last night from the Canadian Council on Children and Youth who pointed out that in many cases Children and Youth who pointed out that in many cases children’s right are not adequately recognized.
You suggest at page 7 of your brief in the purpose clause that the equal right of men and women to the enjoyment of all civil, political and economic rights should be clearly stated.
I would suggest that rather than stating men and women we should say males and females because I assume that you would not want children to be denied access to the benefits contained in the Charter on the basis of sex any more than you would want adults to be denied access. Would that be a fair assumption to make?
Ms. Acheson: Yes.
Mr. Robinson: Thank you.
You have also made reference to the process here, and I will not elaborate on the process other than to ask you one question on the process.
There have been suggestions in some quarters that what should be done in terms of process to bring the constitution back to Canada and then when it gets to Canada to let the provincial Premiers and the Prime Minister sit down and propose amendments. I wonder how you would respond to a suggestion that rather than entrenching equal rights for women in the constitution before it comes back to Canada that it should be brought back to Canada and there that ll men should make the decision on whether women should have equal rights in Canadian law.
Ms. Acheson: We are definitely opposed to that. I might add that, coming from Western Canada, the Premier of my province does not speak for me as a Canadian; and I do not think he speaks for a lot of other people in British Columbia who are Canadians through and through and there is no question about it.
I am opposed, however. to any sort of a constituent assembly that represents only the governments. I think that it is extremely important that the people of Canada in their various capacities, abilities, races, origins, creeds, religions and sexes be represented on any such assembly.
Mr. Robinson: Thank you. Mr. Chairman, just a brief comment and a final question if I may, with respect to your suggestion on Section 29(2) that there should not be in fact a three year delay I just would note, and I am sure you are aware of this, that Canada has been required since 1976 to adhere to the provisions of the International Covenant on Civil and Political Rights and that Canada has therefore had four years at both the provincial and the federal level to bring into existence laws which do not discriminate on the bases outlined in the Covenant, so presumably we do not need another three
years in addition to that to change our laws to accord with the nondiscrimination sections.
My final question relates to your proposals for Section 15. I understand why you are making the proposals, the philosophical reason for making the proposals, and I certainly share that. Howsever, quite frankly. I have some concerns about your proposed wording and I think it does not adequately cover the areas that you are attempting to cover.
You suggesting that there should be basically two standards, that there should be the unreasonable distinctions standard and the compelling reasons standard. Two questions on that, first of all how did you arrive at the list which should be included under the compelling reason classification? For example, I would have assumed it might have something to do with immutable characteristics rather than other characteristics and if that were the case one might question why for example religion is included but sexual orientation is left out.
I wonder if you could clarify why it is that you choose those particular grounds for the compelling reason tests, how you arrived at them, and you might comment on the point that I made specifically.
The second question is, are you not concerned, I am certainly concerned and I wonder whether you might share this concern or at least deal with it, about the possibility that if there are two standards the compelling reason standard and the unreasonable distinction standard that the courts might be led to impose a rather weak standard on some of the grounds which are not included in the compelling reasons section and that they might point to the fact that there is a compelling reason section and that many of the other sections, important provisions, grounds upon which discrimination should not be permitted, might be dealt with in too cavalier a fashion because there exists a double standard within Section 15.
Ms. Acheson: I am going to answer the latter part of your question first of all
With respect to the lowest standard somehow being applied and the courts being cavalier, I do not think the courts are going to be cavalier faced with an entrenched bill or charter of human rights.
The reason that the matters of sex, race, national or ethnic origin, colour and religion were placed in the compelling reasons section is that they are, as Gordon Fairweather has already indicated to you, areas where there should almost never be any ground for discrimination. That has been and is a very difficult decision to make. It is easy to say sex, race, national or ethnic origin and colour. We felt also that religion was the type of matter that can never result in discrimination being justified.
The unreasonable distinction test is a test that exists in common law and has existed for a long period of time. We know what it means and I am reasonably satisfied that the test will be properly applied. If we do not give the court some flexibility, if we leave the court in the situation of having only one test, a compelling reason test, then I believe we are watering down the compelling reason test because faced with
the four-year-old or the 10-year-old who wants to drive the court is going to have to find a way around it and what we will be faced with is a watered down situation.
If you look at the American jurisprudence, the courts have come up with a number of tests at different levels for different treatment of different kinds of discrimination, and our court will have to do that as well, and we are going to have to have some faith in our court to do that properly, which brings us back to the composition of the court, as far as I am concerned.
The Joint Chairman (Mr. Joyal): Thank you Ms. Acheson. Mr. Irwin.
Mr. Irwin: Ms. Acheson, I think we have heard the deficiencies in Section 1 so many times that is probably generally accepted that the groups other than the majority of the Premiers feel that it is much too weak and should be strengthened, so I will not deal with that.
I am interested in women to the Supreme Court of Canada. I do not think Minister of Justice indicated that there was any conspiracy to keep women off the Supreme Court of Canada. I think he was indicating that over the last few decades there have been more and more women going into law. Where you might have had five or six in a class of 300 in the early sixties and now perhaps 50 per cent of the class is female. it has been an evolution to a point where possibly women are already, because you do not want to take a lawyer with under 15 or 20 years of experience for the Supreme Court of Canada. I think the point is now, and I think personally I agree with you that there should be a woman on the Supreme Court of Canada. The evolution has reached a point of maturity where there are a large number of qualified women. It is not just qualified, very qualified women, that is the only type that you would consider for the Supreme Court of Canada.
I am interested in your three month suggestion. Is this where you have to advise the Crown of your intent to sue them and they have three months to do something about it?
Ms. Acheson: Under a number of Crown Liability Acts where you are suing the Crown, for instance, for damages incurred on a city bus, that sort of thing, you give the Crown three months notice that you intend to sue them claiming this damage because of this wrong and then the Crown . . .
Mr. Irwin: I have read the section. It is my experience from that section that it is not there to hasten the procedure, it is there to hinder the procedure, and many lawyers—most lawyers are not aware of it—but many lawyers have issued writs within that three month period and then found out that they are out of time and they have been thwarted and lost their actions. I have never thought of that three month section as an enhancement to the process. I always felt the three month period should come out because it has never helped anybody and it has hindered many litigants.
Ms. Acheson: We are certainly not recommending a system where if you do not give the Crown notice that you intend to sue within three months of having had the injury that you lose your cause of action. What we are saying is that the government is indicating that they need three years to amend the statutes on the books. Presumably that means that we do not want a flurry of actions that are unnecessary because in fact it is our intention to make the amendments, which they have not made for the past seven years, since the Status of Women recommended the amendments, but in any event presumably that is what it means.
If that is what it means we will give you three months notice and if you decide to make the amendment, fine, nobody wants to spend $10,000, because that is what it costs the average litigant, Joe Citizen, $10,000 to go to the Supreme Court of Canada, if the government will cooperate and amend. So there is not going to be useless litigation. The first thing I am going to do is write a letter to the government suggesting they should amend.
Mr. Irwin: Something bothers me. In your Section 9 you criticise the three year delay and it say it takes you three to six years to get justice; it takes you six years or more to get justice; yet in your next recommendation on page 18 you are talking about constituent assemblies made up half of members of Parliament, of legislatures, a mix of people across the country. Who would have the power to decide the composition of this constituent assembly?
Ms. Acheson: Parliament, I presume.
Mr. Irwin: I thought we were that. I thought we were a mix of people across the country elected by the people across the Country.
Ms. Acheson: I acknowledge that that is what Parliament is, but it is a very different matter when you are talking about drawing the fundamental constitution of a country and it is my feeling, my personal feeling, that there should be direct consultation with Canadians.
If you are not going to go through that process which is the reason I am here today, because I believe that you are not going to go through that process, then I want to ensure as a women lawyer that what is done is done properly and as well as it possibly can be done.
Mr. Irwin: Can it be done properly and be done well here in the House of Commons?
Ms. Acheson: It can if you accept our amendments wholesale.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin. I would like to call now Mr. McLean.
Mr. McLean: Thank you, Mr. Chairman. I would like to join with my colleagues in saying how much the brief and presentation are appreciated. It is indeed a very thoughtful and well constructed presentation.
As I look at the direction of the presentation I seem to hear the delegation suggesting to the Committee that justice must not only be done but also it must be seen to be done, and that in the proposals that are presently before the Committee and the House that this important principle may well be in jeopardy.
I hear a suggestion in the presentation that in terms of a constituent assembly that this may be one way of addressing this. I wonder whether—and there have been some questions raised about the assembly—in the light of some of the drawbacks which have been presented, this constituent assembly may address this.
I would also welcome from the delegation some further comment on the matter of affirmative action as a means of enforcing or addressing the principle of justice, not only being done, but being seen to be done; because at the moment when the question of the implementation of affirmative action is raised, the comment comes that this will create a reverse discrimination.
Very often when this matter is pressed by women’s groups and others who are concerned about the principle, the answer is that we will be creating an injustice and that two wrongs do not create a right.
I wonder if the delegation would comment on that principle, and I am interested particularly in the thrust of their presentation today.
Ms. Thomson: We see very clearly the danger of an affirmative action program, or a section which allows it; because, indeed, it is an exception to any guarantee of equality under Section 15.
That is why we have articulated a very tightly worded affirmative action clause. We feel it should be specific in what it allows. We have put in safeguards so that the government must scrutinize any program which is proposed.
We see this being done not through an act of Parliament, every time you want to put in an affirmative action program; but there are mechanisms in place right now in certain acts, for example, the Canadian Human Rights Act, for scrutiny of programs by an appropriate administrative body.
We see the danger, and we have tried to make safeguards against those dangers by having a very closely worded affirmative action clause.
Mr. McLean: I wonder, Mr. Joint Chairman. if I might pursue that a little further in relation to the Supreme Court.
If you were to apply your thinking in terms of women’s representation on the Supreme Court, how would you proceed? What action would you like to see specifically in terms of applying affirmative action principles to that imbalance?
Ms. Acheson: Miss Charlebois would respond to that question.
Ms. Charlebois: Since we see no problems in requiring proportional representation of seats in the Supreme Court, since it presently exists for representation from the civilian law program, which is my jurisdiction, I would suggest that the consultation process might involve some sort of hearings,
perhaps before the Senate, following, perhaps the American model to ensure that the quality of appointments were satisfactory to groups such as ours and would involve us in the consultation process through Senators and elected members.
The Joint Chairman (Mr. Joyal): This will be your last question, Mr, McLean—a very short one.
Mr. McLean: Thank you, Mr. Joint Chairman.
Would you see embedding a percentage in perpetuity, in other words, in terms of the Supreme Court and the appointments there, surely there comes a point after a period of time where once the imbalance and the accumulative effect of past discrimination has been dealt with, that those provisions would not be necessary.
How would you begin to deal with that, or would you embed that for all times, that 52 per cent would be necessary?
Ms. Charlebois: Why not cross that bridge when we come to it. Until then, I would rather see some sort of proportional representation.
Mr. McLean: Thank you, Mr. Joint Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. McLean.
Mr. Lapierre will be the last one.
Mr. Lapierre: First of all, let me tell you that my wife must be very proud to be a member of your group because we already have had discussions on the same subject and she shared most of your views.
I will direct my questions to Ms. Charlebois on the membership of the Supreme Court.
It was maybe by accident that somebody said that the minister of Justice could not find qualified women. Somebdoy said that. I do not think that it is really what he meant but under the present appointment system which is much more exhaustive than was alleged by my colleague opposite, has your association already submitted proposal to the minister of Justice for recommendations for the appointment of judges?
Ms. Charlebois: Indirectly, the question was already put to us by the former government last year.
Mr. Lapierre: Have you already submitted the recommendations of your own initiative?
Ms. Charlebois: Yes.
Of our own initiative, no.
Mr. Lapierre: No. All right.
There were also, of course, several questions, particularly on Section 24. We had the privilege of hearing several groups representing the Indians and the Indian women and we still have not been able to get a clear position as for the statute of equality of men and women among the Indians. We are often asked in a way to resolved that question and we were told earlier that it was not up to the white people to settle the problems of the Indians, that they could very well settle them between themselves.
Do you not think that it is too much of an intrusion in their own lives?
Ms. Charlebois: I will give you part of the answer and then Deborah Acheson will complete it.
I think you should hear the women groups representing the natives. I think they are asking that their rights be the same as the one of men and we do not think that the status quo should continue because it is the very people benefitting from it who are asking for its discontinuation.
Deborah will now complete the answer.
Ms. Acheson: I would just like to add to what Monique Charlebois has said. I have read in the proceedings questions posed by members to the effect that this proposed charter does away with the inequality for Indian women.
I was surprised to read those statements in the proceedings, having read what was said by the Minister of Justice when he appeared.
I would like to refer to that. The Minister of Justice was questioned on this exact question, and this was his reply.
The question that this Committee and the Parliament will have to face someday is, should we impose a solution. In 1969 I started to debate that with them, because I was appalled myself at that time that when a women was married, an Indian woman was married to a white man I had to sign a paper that meant that she was disenfranchised. I had no flexibility. The law forced me to sign that paper, but I have never been comfortable with it.
This has been going on with the Indians for a long time, and some Indians might say since time immemorial. To incorporate that type of problem in one of the clauses could be very dangerous, to try and solve it in six lines.
So in having a negative presentation like this, we are trying to protect and keep their rights as they are without prejudicing them in any way.
I take that to be the stated position of the government, that the Charter does not affect Indian rights and that consequently the women are not in a position to have equal rights in Canada.
Mr. Lapierre: To conclude, if you also read the debates on the House, you might have noticed that the minister for Indian Affairs, the Honourable Munro, said that the federal government considered that it would be morally bound by the present charter and that it would rescind this section which creates an inequality between Indians and Indian women because it thinks that the charter would have direct consequences on the Indian Act.
Now, my last point . . .
Ms. Acheson: I have to reply to that, I would create an interesting paradox for the government to consider itself morally bound, and therefore in a position of not disenfranchising an Indian woman who married a white man, and an Indian man to bring a case to the Supreme Court of Canada and the Supreme Court of Canada to find, on the basis of statutory interpretation, which I think it would, that the Indian Act was preserved.
Mr. Lapierre: It could be a dilemma.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre.
I see that we have gone over the time that we had originally anticipated would have been sufficient for discussions with our witnesses—all three groups we had this morning.
It is my pleasure, on behalf of myself and Senator Hays, the Joint Chairman, and on behalf of all members of this Committee to thank you especially for your exceptional contribution.
I would like to state, speaking for myself as a member of the legal profession, that I very much resent or regret that in the past year we have not seen more of our consoeurs having an opportunity to sit on the Bench. I know, especially in my own province, women who are judges, and I would like to mention only two names, Madame Claire Larue-Dubé, and Madame Réjane Colas, both of whom have been outstanding judges of our superior court.
We have to continue to press very much, first within our own profession, the Bar, which has not been the best example that one would expect in the fight to establish equality between men and women, especially, as you have said yourself, when it is time to put forward recommendations to the Minister of Justice.
I think we should, first as lawyers, clean our house and then continue to set the best example within our own rights before we press other groups to align themselves on those same grounds.
I would like to thank you very, very personally for what you have urged, and it is one thing we should not need to entrench in a constitution. It should be something which flows naturally from the raport that we have to entertain in our own profession.
Thank you very much.
There will be a meeting of the sub-committee on agenda at 3 pm. in room 306, [Text] and I would like to adjourn our meeting until 3:30 when we will have the opportunity to hear the representatives of the Council of National Ethno-Cultural Organizations of Canada.
December 9, 1980
The Joint Chairman (Senator Hays): May I call the meeting to order.
I must apologize on behalf of the Committee for keeping you waiting. We had another meeting and we apologize for that.
We have with us this afternoon the Council of National Ethnocultural Organizations of Canada, represented by Mr. Leone, who is the President and his group. I am going to ask you, Mr. Leone, if you would mind introducing the people that are with you and then probably you might give us a short
presentation of your brief and then members of the Committee would like to ask you some questions.
Mr. Laureano Leone (President, Council of National Ethnocultural Organizations of Canada): Thank you.
Mr. Chairman, honourable members, my name is Laureano Leone, I am the President of the Council of National Ethnocultural Organizations of Canada and a member of the National Congress of Italian Canadians.
To my left is Mr. Navin Parekh, Vice-President of our Council, and a member of the National Association of Canadians of origin in India. To his left is Mr. George Imai, our Secretary and a member of the National Association of Japanese Canadians.
To my right is Mr. Andrew Bandera, a Vice-President of the Ukrainian Canadian Committee, and to his right, Mr. Algis Juzukonis from the Lithuanian Canadian community.
On behalf of our Council, Mr. Chairman, I wish to thank you for the opportunity to be able to address this Committee. Our organization is the newly created umbrella body for over 30 national organizations representing the broad spectrum of Canadians of non-British, non-French descent. As such, we represent Canadians who were born outside of Canada and Canadians whose parents may be third or fourth generation Canadians.
We represent the different languages and different cultural backgrounds but we are proud of our common denominator, the fact that we are Canadians. We cherish this and we want to state so loudly.
Our Council represents, through the individual national organizations, the aspirations, desires and wishes of a wide segment of Canadian society. We are, if you will, a small Parliament of the ethnocultural groups, at least until their representatives will have a place and a voice in the Parliament of Canada.
Our Council strives to be a common voice which represents all concerns and matters which affect the lives of our people and society at large. Today we are proud to be before your Commission and to speak on behalf of our people, on behalf of devoted Canadians who are in danger of being left out of an important debate. We have been regarded as a segmented society, regarded as second class citizens, as minorities among the two super minorities.
The people we represent have been left out and until today not really listened to, but we have worked hard to build this country which is our Canada and your Canada. We are sometimes remembered at most as a footnote, the Chinese for building our railroads, the Ukrainians, Germans and Poles for opening up the richness of our prairies, the Italians, Greeks and Portugese for the building of the big urban centres, be it Toronto, Vancouver, Edmonton, Calgary and Montreal. Yet, there has been very little done to call on these Canadians to share the knowledge, background and experience in the running of this country. On the contrary, in the course of our
short history we have been subjected to internment or imprisonment as aliens and even enemies.
Mr. Chairman, your Committee has a great responsibility to help formulate a new constitution for Canada, a constitution which would be judged by posterity, by the world. A constitution which will be remembered as the product of illuminated minds, or as the result of bickering and parochialism, Our Council has some specific views and comments on the proposed document before you.
The first of these concerns is the entrenchment of the Charter of Rights and Freedoms. The Charter must not be a document based on political compromise, a document of half-hearted intent or dubious meaning. It should be an example to the world, a clear, candid and strong bill which would assure the present and future generations of all Canadians equality before the law, in status and in society.
Do not hesitate. Tell the world, and speak loudly, state that all Canadians in the way God has created them are free and equal people with equal rights and equal protection under the constitution.
The constitution must be a document which will reflect the reality of Canada today and of the future. One of those realities is the diversity of Canada. I am from Toronto and what they say about Toronto can be said of any other city in Canada. Just 30 years ago Toronto was considered the cold wasp city. Today Toronto is an alive, vibrant, beautiful, cosmopolitan city, a city rich in the diversities of its people. enhanced by the cultures and languages of scores of communities. A true multicultural city.
Canada is much like Toronto and when we hear that thee everyone that there are alos the building peoples, the peoples who have contributed to the Canada of today and the people who will build the Canada of tomorrow. Since 1947, Canada’s population has doubled and the building peoples have been the central element in this growth.
Mr. Chairman, we endorse and support the two official languages of Canada but in a multicultural environment. We cannot reconciliate this with the concept of cultural dualism. Our vision of Canada is one in which our culture will be a component of the best that all our cultural heritages can offer. We see the evolution of a Canadian culture resulting from the contributions and attributes of the multicultural pluralistic society in which we live.
We look to a Canada of the future in which our children and our children’s children will have the opportunity to retain and develop the rich heritage, that they will have the guarantee to maintain, learn and study the cultures, languages and traditions of their ancestors. A constitution made in Canada and for a Canada of the 21st Century must give recognition to the multicultural reality of this country, it must be a constitution which will have a meaning for all Canadian and of which all can be proud.
Mr. Chairman, your Committee has received our Council’s brief detailing some of our comments. With your permission, I would like to call on the other members of our delegation to address themselves to the specific issues raised in the brief. At this time, with your permission, Mr. Chairman, I would like Mr. George Imai to continue with our presentation.
The Joint Chairman (Senator Hays): Yes, go ahead.
Mr. George Imai (Secretary, Council of National Ethnocultural Organizations of Canada): Thank you, Mr. Chairman, honourable members.
I come before you not as a first class Ontarian but as a second class Canadian. Born in British Columbia, where I got my primary education in the internment camp, and then forcibly removed to Saskatchewan where I was raised, and then to Quebec for my higher eduction, and now a resident of Ontario.
I opened deliberately this way to emphasize my strong feelings for the demand of a meaningful entrenched bill of rights in our constitution for all citizens of this country. As in the past, our faith in our legislators is suspect even today. During the First Ministers’ conference we heard some of the Premiers state that we do not need an entrenched bill of rights in our constitution because the provinces protect all of its citizens.
I wonder if those citizens of Alberta, where the crosses were burned on their front lawn, feel that way. Or the East Indian that is brutally beaten in Toronto, or the Philippine that is stabbed in Winnipeg or the members of the Buddhist Church of Quebec which is not recognized by that province today.
Today in all our provinces we have human rights legislation. However, those codes can be vigorously enforced or left to stagnate, dependent upon the whim of the legislators and that is a reality of the situation today in Canada.
Why must three successive federal Ministers of State for Multiculturalism be concerned and come to the defence of the visible minorities? The history of Canada is a history of prejudice and discrimination to many of us who are of non Anglo-Saxon origin.
I would like to cite a few examples of what has happened and what is happening. The treatment of our original Canadians has been and still is abysmal. In the past the denial of the right to work and restricting the bringing in of wives and mothers of Canadians of Chinese ancestory to Canada was evidence of legislative and administrative discrimination. The internment and imprisonment of Ukrainian Canadians in World War I under the guise of being enemy aliens, the internment of the Japanese Canadians during World War Ii. May I point out, since this was brought up at the First Ministers’ conference, some funamental differences with the United States. The beginning of the internments were similar. However, the end is quite different. Due to the American Bill of Rights and its judicial system as entrenched in the United States Constitution, one, the Japanese Americans were able to return to their homes. However, in Canada we could not
return to our homes. I wonder if the mobility rights were in effect then what would have happened to us.
Two, perhaps most important, no Japanese American citizens were forced or involuntarily exiled from the United States. This was not the casein Canada.
Three. even as early as 1942, individual Japanese Americans were able to appeal to the courts for a judgement, even though it went against them. We in Canada had no such recourse.
For those reasons alone an entrenched bill of rights in our constitution is fundamental and unconditional. Mr. Chairman, we not only support but we demand a strong and meaningful bill of rights entrenched in our constitution. The constitution must guarantee that what happened to us will never again happen in Canada.
Our plea to you is to give us the right to life, liberty and protection of security. Do not leave us as second class citizens as we are today. Perhaps this constitution may give us, not only protection before the law but give us the psychological uplift to honesty believe that we. too, are part of this nation and not just tolerated in our own country.
Mr. Chairman, as men and women of good will and good faith I hope you will put aside your political differences and work together to bring forth a constitution that your fellow citizens will be proud of.
Mr. Algis Juzukonis (Council of National Ethnocultural Organizations of Canada): Mr. Chairman and honourable members, my name is Algis Juzukonis and I would like to comment on the proposed Charter of Rights and Freedoms.
Our Council, as have others who have appeared before this Committee, objects to the loose formulation of Section 1 of the proposed Charter of Rights and Freedoms. It is under the very guises of concepts, reasonable and in the best interests of a free and democratic society that many Canadians who are members of our constituent organizations have been discriminated against.
Any person would find it difficult to argue, and even more difficult to prove that the internment of the Japanese Canadians during World War ll the internment of Ukrainian Canadians during World War I or the disenfranchisement of Chinese Canadians at the turn of the century was not reasonable or generally accepted necessities. The very purpose of an entrenched Charter of Rights and Freedoms is to protect minorities and individuals from supposedly reasonable discriminatory actions by an emotional majority.
The proposed resolution, because of the preeminent placing and wording of Section 1, does not give Canadians that basic protection and fails in handing over powers, to paraphrase the Prime Minister, to the people of Canada. We cannot fully endorse the proposed resolution if Section 1 remains the same.
If there is to be a general limitation clause, then it must be restricted as possible without any, and we emphasis any, limitation on Section 15(1), the nondiscrimination rights.
Canada is proud to be one of the freest nations in the world where every person has equality of opportunity. Canada has also undertaken international commitments in the human rights area and has stated publicly: look, if we err, you can call us to task. So we suggest it is time to give the protection of those covenants to the people of Canada, covenants which give wider expression to human rights than the proposed resolution by including a provision in the Charter for the invoking of international agreements in the human rights area ratified by Canada in the courts.
We would also further suggest the inclusion of a provision in the new Charter guaranteeing legal counsel to those Canadians who are not able to pay for it.
Mr. Andriy Bandera (Council of National Ethnocultural Organizations of Canada): Mr. Chairman, my name is Andriy Bandera, and the second major point raised in our Council’s submission is the question of the entrenchment of a clause in the Charter which would make a clear reference to the multicultural dimension of Canada, and which would guarantee the rights of all Canadians to preserve, enjoy and develop their cultural and linguistic heritage.
Although it may be argued that such provisions should not be placed in a fundamental Charter of Rights and Freedoms, we find it necessary to include them in light of the provisions regarding the official language guarantees in the proposed Charter. In view of the detailed guarantees regarding official languages and the rights of official language minority groups, with which we concur and we will comment on this question later, the absence of any mention of general cultural rights or positive provisions for the protection of nonofficial minority rights is seen by us to be more than mere oversight. We cannot but view this as a deliberate ommission and a sign of over discrimination of a substantial sector of Canada’s population in a document which is to be the yard stick for Canada today and for Canada of the future.
Mr. Chairman, we reject out of hand any formulations or implied constitutional provisions based on the concept of founding nations or races. The only groups which may lay legitimate claim to such terms are the native people of Canada. While we fully endorse official bilingualism as reflected in the provision in the Charter, we resent that the additional dimension of this country, namely multiculturalism, does not appear to warrant inclusion in this Charter.
For nearly a decade the concept or phrase of multiculturalisim has been little else than a political football to be snapped, passed and kicked, but mostly fumbled, with no touchdowns and no field goals scored.
The B and B Commissions recommendations which resulted in the Official Languages Act and the social action program, and indirectly in todays proposals of the constitution act appear to have had little impact where this recommendation is contained in volume 4 regarding the so-called other ethnic groups. Yes, there is a policy but no legislation or no statute. Yes, there is a Minister but no department or even an Assistant Deputy Minister.
Instead of an inclusion in the present resolution to the Queen we have heard ridicule, protests over Balkanization and charges of tokenisim or patronage. Is this the way we want to have our contribution and input into Canada viewed today and remembered for tomorrow?
Mr. Chairman, we cannot accept the reassurances that we will be somehow favoured with a vague preamble or possible future amendment to the constitution. If the government is intent on enshrining a Charter it must include us today.
We only have to recall the fiasco or the rejection of an amendment to an immigration bill a few years ago. We were then told that a preamble to a new constitution would be more meaningful, that a reference to multiculturalism would be made. In 1972 the MacGuigan-Molgat Committee on the constitution made substantial suggestions for the inclusion of multiculturalism but those recommendations have somehow disappeared. Since then we have had the Pepin-Robarts Task Force, the Ryan Beige Paper which has revived again the discriminatory concept of duality and the founding nations concept of Canada.
Mr. Chairman, our Council advocates linguistic and cultural tolerance and understanding. We reject the fossilized and xenophobic perception of Canadian society based on a static and retrospective view of past privileges or the fallacious concept of two founding peoples who have somehow become more equal than others’ We therefore ask, Mr. Chairman, that this committee give the strongest possible consideration to the suggestions contained in our brief which includes the following points:
One, an inclusion of general language rights or, in our phraseology mother tongue, as a nondiscrimination right in Section 15(1).
Two, an additional clause in Section 15 which would not preclude any programs, laws or activities designed to protect and develop any linguistic and cultural rights in Canada.
Three, a provision that would extend or enable provincial legislatures to extend the status and use of other languages other than English and French.
Thank you, Mr. Chairman.
Mr. Juzukonis: Mr. Chairman, I would like to now comment on the proposed Section 23.
Minority language education rights are basic to the Canadian reality of bilingualism and multiculturalisim. They must be guaranteed in as broad and sweeping a manner as possible, and equally available to all residents of Canada. Those who are already citizens and those who are yet to become citizens.
Unfortunately, the guarantees in Section 23 of the proposed Charter are obviously discriminatory and unduly limited. Limited because it leaves open the possibility of endless debate as to the number required to ensure provision of public funds. Discriminatory because Canadians whose first language learned and still understood is neither English nor French and permanent residents have no right of choice at all.
Mr. Chairman, there is no justification to limit the reasonable demands of French Canadians to be educated in the French language on the ground there are not sufficient numbers in any particular area. French Canadians are justifiably very anxious about their culture and language because of historical assimilation trends in Canada and in North America. We share their anxiety and support their efforts and in particular we would encourage every newcomer to Quebec. whether he be anglophone or nonanglophone, to integrate into the majority official language group.
Constitutions should not be built on political expediencies. Constitutions should also not discriminate against persons who are not yet citizens, except in the right to vote and hold elected office. Section 23 clearly does this by excluding persons who have permanent residency in Canada.
Mr. Chairman, I was born in Canada, my first language learned and still understood is Lithuanian and I am excluded by definition from the right of choice in Section 23. Am I any less a Canadian, that I am given second class status. Are there many Canadians of the nonfrancophone or nonanglophone communities whose mother tongue since first language learned and still understood is the accepted definition of mother tongue, any less Canadian than a person from Britain or a Frenchman who immigrated to Canada within the last five years?
Mr. Chairman, simply what does it take to be a real Canadian. Must we assimilate into one of the majority groups? Is the policy of multiculturalism simply lip service?
Mr. Parekh (First Vice-President, Council of National Ethnocultural Organizations of Canada): Mr. Chairman, I would like to close our remarks by making a few brief comments.
Mr. Chairman, we wish to indicate our support to two sectors of our society who have been consistently discriminated against. They are the handicapped and the native peoples of Canada.
As you have seen in our brief we feel that special consideration of their problems in the constitution is necessary to rectify past injustices and the certain possibility of future discrimination.
Mr. Chairman, I hope that our appearance here before this Committee will not be a repeat of previous experiences when we, the so-called ethnics, or other Canadians, are treated with great respect until the doors are closed and the real work could begin again.
Thank you, Mr. Chairman. We will be very pleased to answer any questions that you may have.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Fraser, followed by Mr. Lewycky.
Mr. Fraser: Mr. Chairman, I think I can speak on behalf of all of my colleagues. gentlemen, that you are indeed very welcome to be here. I want to compliment you on your brief and, keeping in mind the remarks that have just been made, I hope that you are going to get a better response as a result of some of these representations than you feel that you have had in the past at similar committees or commissions.
Could I turn first of all to the announced desire on your part to have the multicultural reality of Canada reflected in this document. Can you be a little bit more specific as to just where you want it and how you think the wording should go and what you think it should say.
Mr. Bandera: Mr. Chairman, we are actually quite open as to exactly where that particular reference could be made. It could be made in Section 15 or in an addition to Section 22.
In our brief we recommend that perhaps an additional clause in Section 15 which would read that the guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada nor preclude any law, program or activity which has as its object the protection of heritage, language, cultural rights and the development of all cultures in Canada.
That is one of the variants that we have considered. We know that some of the other members of our Council who have appeared before your Committee have recommended wording in other sections. Our key point is that we would like to see an inclusion in the Charter of multiculturalism. If we view the detailed provisions for the official language minority groups, and as the B and B Commission has stated, language is the key to culture, then linguistic rights also have the common cultural rights entrenched in the constitution. We do not have this for the other ethnocultural groups, so we are quite open to any formulation anywhere in the Charter that would make a clear and positive reference to the cultural pluristic society of Canada.
Mr. Fraser: I think I understand you and I certainly agree with you that we are a country made up of people from many diverse parts of the world and with many different cultural and religious attitudes and backgrounds.
Now you speak about how it irritates you to hear of the two founding peoples. I can tell you as one whose background is not English but is Celtic and whose ancestors until we were no
longer successful fought against the English, some of the complaints that you make are also known to others of us who might all too easily be just lumped in as English.
So I find nothing outrageous in what you are saying. I think it makes a lot of sense. it is a concept of respecting our individuality and our backgrounds.
What I am trying to get at is just how we deal with it in terms of putting something down on paper here. We do not have very much time, as you know, and we may need a little assistance from you, after you leave here today, if you could give us some more specific guidance as to where and in what way the words should reflect what you have said. So far as I am concerned if you could give this Committee some assistance I am quite prepared to support the general principle that you are putting forward.
I notice that on page 9 of your brief you are speaking here of the right of a legislature to extend the status, rights and use to any other language other than the two official languages of French and English. I think you quoted the MacGuigan-Molgat Joint Committee on the constitution and I gather, on page 9, that this is a quote and I read it to you:
“The constitution should therefore provide in its section on language rights that provincial legislatures may confer rights on other language groups with respect to use in the legislature themselves, or in government administration, the courts and education in publicly supported schools, the negative phrasing of Article 19 of Victoria Charter is not adequate.
Now, there may have been a bit of a mix-up in that last part of the sentence that you did not intend to be there, or perhaps I am not reading it correctly.
Are you saying then that this document we are dealing with ought to in clear language confer on to the legislatures of the provinces the right to recognize other languages than English or French in their legislative proceedings, in their courts, in the services that a government has to give to all citizens? If that is what you are advocating, how do you see this being implemented as policy and how do you see a legislature faced with the difficulty of choosing which of the languages of its people, not being one of the official languages they would confer this right to.
Mr. Juzukonis: Mr. Chairman, if I could just address several remarks to parts of your question, I would like to preface the remarks by referring to Article 19 of the Victoria Charter which is the direct antecedent of Section 22 in the present resolution.
The reason it was described as negative by the MacGuigan-Molgat Report was that it placed the onus on the appellant to prove that there was customary or legal right or privelege that had been acquired and I would submit to you that there are no customary rights for other languages other than French or English in Canada at the present time.
We suggested the inclusion of multiculturalism or the reality of multiculturalism in a number of areas in the constitu-
tion. One of those areas that we thought might be appropriate for the inclusion of a phrase or a clause was a new Section 15(3) which Mr. Bandera previously pointed out. The reason we have included the addition to Section 16(2) is that many times we have come up against various government agencies such as the CRTC or the CBC and we have said to them, look, we would like the CBC to at least hire 20 producers. You have the technology; you have the equipment; you have the means; and it is not going to cost that much money; and introduce third language broadcasting. The CBC says no, we do not have the right to do that because nothing in our mandate says that we can do anything but broadcast in the English and French languages.
So we have two reasons for including that particular phrase, simply because we want to allow or give at least a weapon that we can use, a means to achieve some of the services that we are looking for in some of the crown agencies, in some of the government agencies, at both the provincial and the federal sector, and if one is to look at the future reality of Canada, there might come a time by 2050 or 2080, 100 years from today, when Ontario might have 3 million or 4 million Canadians of Italian descent, so there might be some regional requirement for some sort of status rights and use for the Italian language.
The same can be said about Alberta or Saskatchewan or Manitoba or any other province of Canada.
Mr. Fraser: Presently, apart from the illustration that you gave, as I understand the situation there seems to be a general agreement among people in this country, except for perhaps some aspect of the present legislation in Quebec, that the language of the people who have come here is respected, and it is certainly not outlawed in any way.
What I am trying to draw from you if I can is just exactly how you want us to address this in this document. For instance, when I read this bit to you in your brief about “may confer rights on other language groups with respect to use in the legislatures themselves” etcetera. I see a lot of difficulty here because we have dozens and dozens of langage groups in the country and it is one thing to try to deal in this document with words that will not only recognize the diversity of our collective backgrounds but it will ensure that for instance to have a third language station would not be unlawful, but that is one thing. But where I get into difficulty is to know how to turn your desires into policies and to implement them without getting into a lot of difficulty with discrimination among the various language groups that do not happen to be English or French.
I can tell you that in my riding for instance, if we started to talk about other languages other than English, there is very little French spoken except now by the English speaking children who are going to total immersion classes, but there is a great deal of Punjabi spoken and a good deal of Chinese and of course there are some European languages spoken as well.
I am having difficulty realting the principle which you espouse and which I agree with into the practical application and I am wondering if you could just for a minute or two comment on that.
For instance, just let me give you an example. In Vancouver today, which is the city I come from, just under 50 per cent of the children who are in elementary school come from families where the mother tongue is not English, so there is a practical problem. The education authorities are having a very difficult time finding funds and also competent teachers and enough of them to teach these children English as their second language. It is a very great reality. In my riding now we have a fascinating mosaic of people. What would happen if you came along and said—for instance in Saskatchewan and Manitoba—said, well, Ukrainian will be the official language in the legislature, there seems to be some historical good sense in that; but in British Columbia I do not know what language we would pick, and I do not know quite how you could help us pick it. That is the difficulty.
Mr. Bandera: Mr. Chairman, if I may, the quotes that we took from the MacGuigan-Molgat Joint Committee on the Constitution was to illustrate that the point had been made by a responsible body of people composed of the House of Commons and the Senate who travelled around the country for a lengthier period of time than this present Committee is sitting, who have made serious investigations, who have come up with very, very progressive proposals, and somehow those recommendations were swept under the rug.
What we are recommending here is not for the inclusion of the whole quote as proposed by MacGuigan-Molgat but merely that the constitution should allow provinces, and obviously the onus is on the provinces, the right to extend the status, rights and use of any other language.
Obviously before any problems would go in that direction a great deal of debate would take place in the province. What we want to have in this constitution is a provision which would allow a province to do so. We feel that on a provincial level that issue would be resolved if there ever was a need. The constitution is made I do not think for our current needs but for many, many centuries to come and that situation with immigration in Canada may be such that there will be a situation where Italian may in fact become an official language of the province of Ontario. We do not know. We should not in the current constitution preclude that possibility, that is all we are saying.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser. Mr. Lewycky, followed by Mr. Lapierre.
Mr. Lewycky: Thank you very much, Mr, Chairman. I would like to commend the Council of National Ethnocultural Organizations of Canada on their persistence. I know they tried for quite some time to get to speak to the Committee so I am commending you on your persistence because it has certainly been very worthwhile for me to be able to hear some of the positive suggestions that are being brought forward.
I especially like your introductory reference to the fact that the constitution must reflect the Canada of today and the
Canada of tomorrow and also you forced us to think in terms of not only a founding peoples but also a building peoples.
My first question deals with your view of Canadian society and how you feel the constitution fits into this particular view of Canadian society you may have. You have made reference to the statement by our Prime Minister on Friday, October 8 of 1971, where he spoke about the announcement of a policy of multiculturalism within a bilingual framework and you mention that historically we really have not had any sort of statutory recognition of this element.
So I was just wondering if you could elaborate a little bit on your view of the Canadian society and how you feel this constitution would address this particular view that you have.
Mr. Leone: Already it has been explained by Mr. Bandera about the need of the inclusion of mutliculturalism, and we should speak clearly.
For the last 10 years the principle of multiculturalism has been endorsed by governments, by all the reports just presented to you, but we have seen that governments, political parties, are pulling back. So we see the danger that the Canada of today, this multicultural Canada is going to again disappear in this format of Canadian society.
Now, we naturally, see Canada, as we see Toronto, the big cities, cosmopolitan, pluralistic—a multicultural society. We would like to have a constitution which would permit us to express our own cultural heritage and be able to live in a society where through understanding and tolerance we can become an effective part of Canada.
This is our goal. This is the point I am trying to make. We see the constitution as a defence or protection for the future.
We have demonstrated to you that discrimination still exists, and the participation of our people in government is still at a minimum.
With a new constitution we would feel—all Canadians would feel as first class citizens.
Mr. Lewycky: In relation to multiculturalism, you gave some historical reference in regard to the States, and on page 2 you make the stastement that minorities are better protected with a charter, backing up your idea of having an entrenched charter of rights; I was just wondering this, whether you did have any other illustrations where, historically, that particular statement can be borne out.
Then, looking at the whole area of rights and so on and so forth, there was a suggestion made that we should somehow be tied into international agreements, international bills of rights, and I was wondering whether you felt there might be any problems in terms of some of these agreements changing and at the same time we have enshrined something and tied ourselves into an international agreement in our constitution, and what effect that would have in terms of our own view of Canada as a sovereign nation, if we are tied into some other standing international agreement?
Mr. Juzukonis: If I may address the last part of your question first, I would like to point something out to you. I am sure you are probably well aware of it. We often refer in Canada to the exemple of the United Kinddom, where there is an unwritten constitution and the rights are protected by custom, tradition and, usually, common law.
Since 1966, I would go so far as to say that the United Kingdom has had an effective bill of rights.
When, after the signing of the European Convention, it allowed individual persons to take cases to the European court, in many cases discriminatory legislation in Great Britain has been overturned because of the actions of that court.
We are simply suggesting in including a provision which would allow the invocation of international agreements, first of all, only to allow the invocation of those agreements which have been ratified by Canada, and if there were any changes which diminished rights or were more restrictive, we would hope that Canada would not ratify it, since we believe that Canada is a truly free country.
When international agreements would be invoked, we would fall into a pattern, on the same lines of the United States where treaties are the law of the land, or in other countries of the Western world. and allow a wider expression of human rights, a much more detailed expression of human rights, but not subject to the particular limitation that we impose upon them in a narrowly drafted constitution.
We simply want Canada to live up to its international agreements. Canada has made those commitments, it has signed the Optional Protocol, the International Covenant on Civil and Political Rights, where it says that you could take us to a public forum and condemn us if we have not lived up to those rights.
So, why can we not give those same rights to citizens of Canada, so that we could defend ourselves in the courts with the international covenants that Canada has ratified?
Mr. Lewycky: On page 10 of your brief, you make some reference to the whole area of language and a limitation. You quote from the B and B report, emphasizing the fact that language is the key to culture.
If I can just quote that one sentence on page 10:
Moreover being sensitive and aware of the justified needs of French language minorities outside of Quebec, the Council feels that the reference to the concept “where numbers warrant” may prove to be a basic limitation on the rights of all Canadians.
Can you elaborate on that, and are you suggesting that the phrase “where numbers warrant” be deleted and some alternative proposed? Could you just clarify that particular aspect of the matter for me?
Mr. Juzukonis: We have already stated in our oral presentation that many of us fear the prospect of unceasing litigation to define exactly what the term “where numbers warrant” means, as to how many people warrant the provision of public funds. Is it 10 per cent, 2 per cent, I per cent, 90 per cent, 95 per cent?
We suggest—and I think this is probably a recognition of the justification, particularly of the French Canadian minority outside of Quebec—that there would not be unreasonable use of that provision to provide schools in the French language for those citizens of Canada who desire it.
Mr. Lewycky: In your brief, on quite a few times, you talk about different apprehensions you have, different fears.
I was wondering whether you could help me to understand a bit what your view is of Canadian society as far as, say, the aspirations of, well, even the English and the French-the French obviously, as we are aware, do have certain fears about their own language and just the fact that Bill 101 was introduced in the Quebec legislature speaks to this, so what type of aspirations do you see being reflected in the constitution, let us say, for the French, that would allay some of the fears that you do have, but at the same time would allay some of the fears the French might have that they might not be adequately represented or some of their own hopes, goals and aspirations would not be dealt with?
Mr. Bandera: Mr. Joint Chairman, we stated in our brief that we fully endorsed the official language provisions as set out in the proposed Charter.
I think that language provisions as such are in fact a guarantee, because, with the language provisions, you have the whole educational, the whole media system, set up which allows a given culture to flourish and develop.
With language guarantees for the official language minorities, particularly for the French outside of Quebec, I think they will have a much better chance to hold their own.
We do not have any fears about the Quebecois element ever drowning in the North American sea. Quebec with its population, with its demographic base in Quebec, a population which is much larger as a francophone society than many other countries who are members of the United Nations, the cultural network set up in Quebec, the music industry, the media, the television industry in Quebec, is uniquely Quebecois and does have a whole system of cultural preservation.
Obviously, there is not threat at all to the Anglo-Celtic groups in North America, in Canada. I do not think they have to be scared of anything.
Perhaps the Celtic groups, and we can refer back to the CBC ban on the Gaelic radio program in the 1970’s in Nova Scotia, of the banning of the Ukrainian language program in Winnipeg when the CBC took over the station: there are certain fears. We do not see any guarantee to date. There is not a single statute of the federal government; only one statute of the provincial legislature—Saskatchewan—which has given any recognition to multiculturalism; and we have this constitution before us which is supposed to determine the future of this country.
We have no illusions that a preamble would solve the problem. We do not want to listen to promises that somehow in the preamble there would be some reference to the diversity.
We want it included in the Charter. We think, from what we have described today, that there is room for protecting these minorities.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Lapierre: Thank you, Mr. Chairman.
Gentlemen, it gives me great pleasure to welcome you here.
I think your presentation brings us back to certain weaknesses or omissions in this charter but concerning your specific recommendation, in all your interventions you seem to prefer the idea of multiculturalism to that of Canada’s linguistic duality. You were mentioning before that your vision of Canada was that as seen from Toronto where there are several ethnic groups but of course I, as a Quebecer, have quite another perspective.
For example, in the proposals you make hearing on Clause 15 where you ask us to add as nondescriminatory criteria the expression, “mother tongue”, do you perhaps not think that at that point, to all practical intents and purposes, you are leaving by the wayside the provisions of Clause 23?
Mr. Juzukonis: Exactly.
Mr. Lapierre: Personally, I attach great importance to Clause 23 and I was quite happy to hear one of the members of your group say that you shared the concern of the francophones of this country and you know very well that certain provisions of Clause 23, where there is a question, for example, of Canadian citizens, that is by indirectly obliging, through Bill 101, the newly arrived immigrants in Quebec to adopt the language of the majority, were inserted to calm the fears of many francophone Quebeckers vis-a-vis the massive arrival of immigrants who, contrary to what is done everywhere else in Canada, in all the other provinces, tend to go towards the language of the majority while in Quebec, in the past, as you know quite well, the immigrants went towards the language of the minority. Do you not think that it is quite legitimate for a government who does want to respect the linguistic duality of Canada to put that sort of clause in its future Constitution?
Mr. Juzukonis: Mr. Joint Chairman, we are the first to admit it. Historically, immigrants were a threat to the French speaking Quebeckers. There is no question in our minds, because, yes, they did integrate into the anglophone element; but they did so for very complex reasons. They can be all boiled down to simple economics: the language of business and of work was English; and immigrants who come to another country are basically looking for some sort of upward mobility.
They chose the English route because they thought that would be the avenue to upward mobility. Because of that fact, Quebec introduced some coercive legislation to force immigrants to learn French and to use French as the language of work.
But I would suggest to you that the situation has now changed in Quebec and that the face of the society is chang-
ing; that, first of all, it is without any question in our minds that the language of work in Quebec must be French, and not only the immigrants must learn French, but the anglophones in Quebec must also learn French. We have no qualms about saying that the French outside Quebec must learn English, but we do not want to say the same about the English in Quebec.
But that change, or integration, into the official language of the majority of the province of Quebec must take place through positive programs, rather than through the coercive elements of Section 23, which we feel is basically discriminatory, not only to those in Quebec but to those outside of Quebec.
I do not have the right to send my children to a French language school, because my first language, as understood, and still spoken, is Lithuane and not English or French. I do not have that right or choice that another citizen might have.
We would suggest to you that the fear, because of the discrimination which has taken place in the past, that fear should be put aside now, and we should welcome and open a positive approach to the question of language in Quebec.
Mr. Lapierre: I thank you for your comments but there is one thing that I certainly share with you and that is the idea that “where the number is sufficient” it is a restriction of individual rights and I think that your recommendation that in Clause 23 that should be taken out is very interesting.
If we return to your presentation on Clause 10 concerning legal rights where you hope that will be added in the right to receive legal aid freely everywhere in Canada for people who do not necessarily have the means, did your group try to find out who would be paying for that legal aid?
Mr. Juzukonis: Yes, Mr. Joint Chairman legal aid exists at the present time under the jurisdiction of the provinces. It comes to a question of principle for us. It is not a question of some sort of program which is necessary. We endorse the Charter of Rights and Freedoms because we believe that is the best way to protect human rights in our Canadian society.
But how can we guarantee that protection, when the poorest elements of our society—who are usually the most discriminated against—do not have the same access to legal council that the more well to do elements of our society have, It is imperative that they be guaranteed that same access to legal counsel that others have available to them.
The only way we can guarantee that is to include a provision for legal aid. In our case it is a question of principle and not of program.
Mr. Lapierre: There was something said about the CBC before which perhaps might have created the impression, in the general public, that in Canada radio and television broadcasting could, in fact, be done only in English or in French.
I would like to point out that even in the west some stations do broadcast in other languages than the official languages and the CRTC does allow the setting up of private stations which broadcast in different languages thus recognizing our country’s multicultural aspect.
Now, for Clause 16, you recommend that the legislative assembly should have the power to improve the status, the right and the use of all other languages.
You know very well that Clause 16 does not prevent legislatures from doing that. You were giving the hypothetical example of little Italy, in Ontario, in 2025. Presently, there is nothing in that Constitution which would prevent the Ontario legislature, in such a hypothetical situation as you have described, to improve the status of Italian but I would like to have you note that we are hoping for at least, as a minimum, that French and English be recognized and I am convinced that there will then be a possibility of opening our hearts to further abundance but there should be a minimum at the outset, in my opinion.
Mr. Bandera: Mr. Joint Chairman, we all share your concern and we would like Ontario to become officially bilingual.
The reason why we posed it was that it was a provision for the right of a legislature to extend programs other than the ones which are now incorporated in the Charter beyond the terms of reference of the Charter.
We felt this was an inappropriate place to also include a reference whereby a legislature also had, the right to extend the right to other languages.
We do not see a necessity for the initial points to be made in the Charter as proposed today, but since it is there we felt that this would be the place to include it. If the provinces today have the rights, we do not see the necessity of having had that point included there.
I would just like to come back to the point you made about radio and television. Of course we have Johnny Lombardy and we have multilingual television, but all in the private sector. The CBC, which is tax supported by our money as well, one third of Canada’s population, our money as well, one third of Canada’s population, our tax dollars, refuses consistently to have anything to do with multiethnic or multilingual broadcasting.
Two weeks ago it was announced that the CBC would be establishing second networks, both in the English and French language, to provide special minority programming. But what minorities? Minorities who listen to concerta, operas and to ballet, and yet our minority demands and requests and appeals have been consistently turned down.
Of course, in the private sector you do as you please but do not touch our public institutions with your demands. That has been the message that we have received from the CBC.
The Joint Chairman (Senator Hays): Thank you, Mr. Lapierre. Mr. Tobin?
Mr. Tobin: I pass, Mr. Chairman.
The Joint Chairman (Senator Hays): Mr. Hawkes.
Mr. Hawkes: Thank you, Mr. Chairman. I have some brief questions.
On page 10 of your brief, in your concluding statement, you refer back to the MacGuigan-Molgat Joint Commission on the constitution in 1972, and you indicate that they produced a report which touched the underlying spirit and reality of Canada, and then your next line says that that committee deliberated in times that were less tense and the differences between the peoples of Canada were not as prevalent.
I am wondering if you could explain that line to me. What kinds of tenseness are you referring to in terms of differences between the peoples of Canada?
Mr. Juzukonis: Well, Mr. Chairman, I think you can see the differences in the tenseness between the different peoples of Canada every day in the newspapers. The MacGuigan-Molgat Joint Committee on the constitution, if I am correct, spent almost two years on the preparation of its report. It travelled across the country. It listened very closely to the different regional and cultural perspectives of Canada, and it was not under the pressures that this Committee is under to produce a document or report by a very specific and very close date.
At that time there was not a Party Quebecois government elected in Quebec, a referendum on the future of Quebec had not been held, so the questions of national unity could be addressed in a more philosophical, a more open, a more honest and a less fearful way than the questions of national unity can be addressed today.
Many of us appeared before that Committee and we were very pleased by the report because we thought it was definitely a recognition of what Canada is today. Unfortunately it got swept aside somewhere along the line and many of the reports recommendations are not incorporated into any subsequent document on the constitution. I guess we were, to coin a phrase, we were looking back sentimentally at a time when times were happier and the grass was greener, for some reason.
Mr. Hawkes: Are you suggesting to us that haste, that lack of time to reflect, that the currency of events, the tensions about which you speak, gives a bad climate to enshrine the kind of constitutional principles which should endure for decades and perhaps centuries, is that partly what is underlying your concern in this area?
Mr. Juzukonis: I think we have that hesitation but I beg to differ with you slightly. I think that this Committee is quite capable of thinking about the possible future of Canada and thinking about the reality of a good constitution and I would definitely hope, and I am quite, let us say I am quite positive about my belief that this Committee will develop a report that reflects the reality of Canada.
Obviously it is always nice to have more time and we would have loved to have had more time to prepare our briefs and submission, but I think we have covered our main points and we hope that you will be able to do the same.
Mr. Hawkes: If we as a Committee could not agree on a particular set of words that deal with the multicultural amendments which you propose, and if we ran out of time and therefore the constitution act goes forward without specific sections of change of the kind that you recommend, what is your opinion of the legal position that you would then find yourself in? Would the groups that you represent feel that they were in fact in a weaker legal position after entrenchment in the absence of clauses of the kind you suggest to us, would this Charter in effect be undercutting whatever progress there has been made to this point?
Would it make it more difficult in the future to get the kinds of programs out of the CBC that you suggest?
Mr. Juzukonis: Mr. Chairman, I would like to make one statement or comment prior to answering that question. I would like to point that none of us here are lawyers and I do not think any of us would be prepared to give a legal opinion on the possibility of exclusion from the constitution and the effect that that could possibly have in the courts.
We are simply concerned citizens, many of us are community activists. With that perspective in mind I would suggest that barring the legal set backs that might possibly occur, we would be in a weaker moral position when we come up against these kinds of questions.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes. Madame Côté.
Mrs. Côté: Thank you, Mr. Chairman.
I have a question of clarification, if you do not mind.
I am also very happy to be here even though I have arrived a little late; I am sorry.
A simple clarification to an answer that was given to Mr. Lapierre.
Do you live in Quebec, Mr. Leone?
Mr. Leone: No.
Mrs. Côté: No . .. The gentleman to the right of number one, if you please.
Do you live in Quebec?
Mr. Juzukonis: No, I am not a Quebecker. Many of my friends are, though.
Mrs. Côté: Because you know with Bill 101, even though I am a francophone born in Quebec as were my parents before me, it is impossible for me to send my children to an English school. So my children must necessarily go to French school.
I believe we are living through a period to which we could apply an old proverb: you have to suffer to be beautiful and I believe that in Quebec, as in the rest of Canada, it is necessary
for us to go through a phase like the present one which will allow us to properly define our citizens’ rights whether it be in Quebec or elsewhere. I think it should be recognized that Canada was founded by two communities, English and French, and that we must do what we can to properly identify who we are. For example, if you decide to live in the United States, you know which language you will have to speak. If you come to Canada, you should also know that.
So I wonder to what lengths a government or a country can go with the individualization of services it must give to its citizens or to those who want to become full-fledged citizens of Canada or of another country because I wonder just how Russia, China and India solved their linguistic problems.
If we were to open the charter too widely, I am afraid we would be living in a tower of Babel by the year 2,000!
Thank you, Mr. Chairman.
Mr. Bandera: Mr. Chairman, we have heard the analogy of the Tower of Babble, some say Balkanization, some say fragmentation, some say ghettoization. We have heard those phrases. We have been told that Canada was founded by the English and French; Canada was colonized by the English and French. The founding people are the natives, the aboriginal people. We reject that Concept.
I am a Ukranian Canadian. Our people opened up the West, Are they founding peoples of the West? No, they are not. They colonized the West as well. We reject that concept. We say that very strongly in our brief.
The Joint Chairman (Senator Hays): Do you have another question, Mrs. Côté?
Mrs. Côté: It is funny, Mr. Chairman, but it seems to me that in my course in history and geography it was the French who had first discovered the West, La Vérendrye and all that; however, I am not denying any presence, as you say, before us, before the French and the English of the Inuit and the Indians.
You know if we decide at some point collectively that we should all speak Inuit or Eskimo, I could not care less but let us agree on something.
I would like to have your comments on that.
Mr. Bandera: If the French discovered the West then we might as well say that Giovanni Cabot discovered Canada before the French or the English, and Giovanni Cabot was of course Italian, if it is the discovery aspect that we are concerned about. We are not concerned about the discovery aspect, we are concerned about the building, the actual buidling of that country, and a lot of people have contributed to the building of this nation.
Now, how do we want to individualize services? We are living in an age of great technological advances. We have satellites who can carry 89 television channels, we have computers, we have technological advances today which in fact open up a whole new vista in the area of education, in the areas of communication, in the culture and arts. Can we not use that technology that we have today to somehow provide something for these so-called nonofficial language minorities
without invoking a Tower of Babble. How does Russia solve its linguistic problems? It Russifies everyone in Russia. One language only, one official language, Russian. Despite any assurances, there may be 50 or 60 regional languages, one official language only.
However, why should we refer to Russia, China or India? We are talking about Canada, and we have a possibility here in Canada to build something unique to accomodate these people. Why do we have this fantastic fear of languages? What is it? Is it so bad to know three languages, four langages? Is it so bad that my child today, my six year old son is trilingual. he will be quadralingual by the time he is eight. Is it bad? We can do it.
Let us not look back and invoke this Balkanization, this ghettoization fear. With good will I think we can do it. Let us not assume a siege mentality that somehow the other ethnic groups are somehow threatening the dominant position or the gains that have been achieved by the official language minority groups.
The Joint Chairman (Senator Hays): Thak you, Madame Côté. Senator Asselin.
Senator Asselin: A brief intervention.
First of all I would like to say that I am of those members of this Committee, and I think all of the members agree, who would like to see inserted in the new Charter of Rights official recognition of guarantees for the different ethnic groups in our country, which we call the third force, without, as Mr. Lapierre specified before, taking away from the fundamental rights which, of course, the two founding groups of the country must have. I believe you do understand that situation and you will admit that we are not taking any rights away from you by recognizing that there are two founding groups in the country who were there when Canada was born.
I would also like to say a word about the Joint Committee of the Senate and the House of Commons that was known as the MacGuigan-Molgat Committee on the Constitution. I was one of the members of that Committee which sat, as you said, for a couple of years.
It is too bad the Canadian parliamentarians did not think of applying, since 1972, important parts of the recommendations of that report which had been tabled by the parliamentarians of both Houses.
I think that if some of the recommendations had been implemented we would perhaps be more advanced now in constitutional change than what we are now trying to do.
We were forced by events that happened here to start moving in the constitutional area and when you say that in 1972 the Canadian unity question was not as acute as it is now, that Quebec was not moving as it has moved in the last few years, I would like to remind you that in 1972 there was also a minority report that had been produced at the same
time as the majority one and where Quebec’s demands had been inserted in a new Canadian constitution; there was discussion in that minority report of things as important as the self-determination of Quebec in a new constitution or being recognized in the preamble of the Canadian constitution.
That being said, what interested me in your remarks was the passage on discrimination. One of the witnesses of your group led us to understand that discrimination was more and more rampant in Canada and that that sort of discrimination mainly effected minority groups and that, among the minority groups you represent, some of them were victims of discrimination.
Of course, you cannot recall the fact that during the war, in 1942, a few Japanese were put under surveillance by the Canadian Government. We were in a state of war. That will be readily admitted but I would like you to develop further the idea to the fact that in Canada there is more and more discrimination being felt by minority groups or the different ethnic groups.
Please correct me if I got the wrong impression when I was listening to you. That question does interest me enormously.
Mr. Imai: Mr. Chairman, just on Sunday W5 produced a program White is Bright. That is the reality of Canada today. We do have laws and yet they are being flaunted.
When I picked up the examples of the East Indian being beaten or being thrown into the subway, or of these Ku Klux Klan crosses being burned on the lawns of citizens in Alberta, that is what is happening, and of course the greatest discrimination, of course, is against our native people.
My fear is not for today but for tomorrow. I think, Mr. Asselin, you have been into the States, you have seen what has been happening there. Is this what we want for our children? I believe that the constitution of Canada, hopefully, can amend some of these wrongs that are going on today. I do not expect a topia but I do hope that there will be some remedies, I hope that an entrenched bill of rights will allow all of us to become equal. I do not know what will happen to the black people in Toronto or the native people in Winnipeg or in Regina or in Calgary, and that is why I said I hope that this constitution will give us a psychological uplift to allow us to become, hopefully, equal in this country.
I see grave danger confronting us and I hope it does not come to pass, but there are those indications now, today, in all of our urban centers.
I hope I have answered part of your question.
The Joint Chairman (Senator Hays): Thank you very much, Senator.
Senator Asselin: One more?
The Joint Chairman (Senator Hays): Well, you are up to about seven minutes. Mr. Allmand.
Mr. Allmand: Thank you, Mr. Chairman and gentlemen. I wanted to say first of all as a member of the MacGuigan-Mol-
gat Committee I say this with the greatest of respect for you, that we did not meet in times of tranquility and without tension. That Committee was set up in the aftermatch of the FLQ crisis with two political kidnapings, terrorism and so on. Another major difference between that Committee and this Committee was that we were dealing with the entire constitution, the division of powers, the Supreme Court, the Senate, the entire constitution, and it is true we took over a year to do our work.
As you know this Committee is dealing with three matters only, the patriation, the amendment formula and the Charter of Rights.
I just want to put it to you that in that Committee we recommended that we entrench as national languages the English and French language and that we also entrench it, for the central provinces of Ontario and Quebec and New Brunswick but we wanted to make clear that in entrenching those languages at the national level we did not want to stand in the way of any province from enacting for that province other languages.
For example, even at that time the Manitoba government had set up certain programs for other languages in their province, Icelandic Ukrainian and so on, and we had travelled throughout the country with that Committee and it had been pretty well put to us that some provinces such as British Columbia might want to have special programs for its Chinese population and so on, so we said yes, entrench French and English as national languages but please leave the way open in the constitution for provinces to have languages that in their political wisdom they wished to have. I therefore support your proposal, which I think is reasonable.
As a Quebecker who is designated I suppose as an anglophone but who comes from several ethnic backgrounds and who very much wants to do everything possible to ensure the survival and the flowering of the French language in Quebec and throughout Canada, I also say that I am in agreement with what you say about Section 23. You do not strengthen one linguistic community by trying to weaken others. You do not strengthen the Colorado Rockies and the Quebec citadels by weakening the Canadians. You give everything necessary for that community to strengthen itself and to build up itself and give it the guarantee that it will not disappear.
A person from my riding in Montreal who came from Italy at four years old, his first language learned was Italian, he still understands Italian, he went, for good or for bad, this was many years ago, into the English school system of Montreal. He identities with the anglophone community of Montreal, He is married now and has young children. With this constitution in place he would not be able to send his children to an anglophone school even though he went to an anglophone school because his mother tongue happened to be Italian, many years ago.
Many of us have proposed amendments to the Minister of Justice and to this Committee and I am hopeful that we can come up with a formula that will strengthen and promote the
French language without taking anything away from the English language in the province.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Allmand. Mr. Epp?
Mr. Epp: Thank you, Mr. Chairman. The questions that l have, and I want to follow what Mr. Allmand said just for a moment, about the entrenchment of national languages and the importance of that but with it not reducing the ability either to use or to strengthen other languages I think is important.
The point that has to be made is the one that a lot of us are looking at and that is the question of founding peoples and I think it is a matter of interpretation. I agree with you, sir, that for those of us who come from the west that concept creates difficulties for us because as we go to various regions there have been founding peoples of that region who through their own efforts were pioneers and opened up the country and gave all of us a future.
I think the constitution will have to reflect that reality as well as the reality of the French and English reality.
I think it is important that members of the Committee take that into cognizance, that that is as much a reality in certain parts of the country as the first reality that is being put forward.
What I would like to ask you is on Section 23 throughout your brief, and while I support it. where you talk about the equality of a person regardless of one’s background and that that equality remains even though we might be different skinned or have different linguistic backgrounds or whatever our background descent might be, that we are still equal; but in so doing in Section 23 when you refer to that in your brief are you referring to language in Quebec only or are you not creating special status by the very process of entrenching the positions that you have put forward? Is that danger not there?
Mr. Juzukonis: Mr. Chairman, if I could just make a few remarks. I find it very interesting listening to Senator Asselin and Mr. Allmand and Mr. Epp discussing the founding peoples’ notion.
I have always found it very difficult to get into my mind exactly what that term founding means. I always thought that if you, particularly when you refer to a country or a nation, when you are founding a nation, that that founding does not stop, that it is a continual creation; and I think I found Canada when I was born. I was born here and I found Canada. I guess I am a founding peoples by that definition—founding people, singular, excuse me.
So I always find it very difficult to really get into that notion.
Mr. Epp: Excuse me for interupting. I do, too. That is why l raised the point.
Mr. Juzukonis: I think what we are trying to do by Section 23 is not place some sort of special status—our recommendations that are made in regard to Section 23 does not create some sort of special status. What we are very worried about is the discriminatory aspects of Section 23 and I would ask this
Committee to explain to me exactly what was the intention behind that, because it is discriminatory, discriminatory against the citizens of Canada whose first language, learned and still in use, is not English or French: discriminatory against permanent residents. Why do we have a separation between that and mobility rights where it is eloquently guaranteed that every citizen and every permanent resident in Canada has the right to move anywhere in Canada, yet Section 23 effectively limits mobility rights.
I do not know if I could do this but I am sure an immigrant who arrived in Quebec and was teaching his children or was learning himself in the French language and suddenly got some sort of a glowing job offer somewhere else in another part of the country where French was not a majority language, would he have those mobility rights? I would suggest to you that he would not because he simply could not transfer his educational rights. So it is very critical to us that that be very clearly spelled out. Section 23 to us is discriminatory.
We recognize the need of Quebec to preserve the French culture and we would suggest to Mr. Allmand that it is very important that every person in Quebec would learn French because French should be the working and operating language of Quebec. We have no qualms with that. That is not a point of discussion with us.
The Joint Chairman (Senator Hays): Is that all, Mr. Epp?
Mr. Epp: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp. Mr. deCorneille.
Mr. deCorneille: First of all I would like to say that I think you have made a very splendid contribution to the thinking of the Committee and its work, very important in affirming your support for the entrenchment of a charter of rights and freedoms and I think by sensitizing all of us to the fact that there are no statutory recognitions of multiculturalism in our Canadian legal system except in one province, and not even too strong a reference there.
Therefore I suppose it leads to this question. Do I understand that really what you are trying to make sure of in this charter is that at some future time should a province, for example, wish to extend let us say an official recognition to Ukrainians, for example, that someone cannot come along in the courts and sue in the courts and take away from the province that which it does want to give.
In other words, someone brought up the point, well, we have the right for provinces now to do this, do we not, so why would we need it. Is it not true that what you are trying to make sure is that someone cannot on the basis of the Charter, because it does not make reference to mutliculturalism and the right to, as you say, have programs and law and activity in another language, that you want to make sure that someone can not come along on the basis of the Charter, because the Charter was silent, and sue or prevent a province from extending the rights which we are saying or assuming that the province has.
Is that what you are saying?
Mr. Bandera: Yes, Mr. Chairman, that is precisely what we are saying.
We feel that Section 22 as it stands right now which is an negative phase calling upon some customary legal rights or privileges that may have been accumulated by the languages, we submit there are no legal or customary rights that have been accumulated by any other languages other than English or French to date and if a province in its wisdom should see fit to extend some, for the purposes of education, for the purposes of perhaps even commerce, to extend some specific language rights other than English and French it should have the right to do so. That is why we picked up on the suggestion made by the MacGuigan-Molgat Commission at that time.
I think Mr. Allmand explained it very well what the intentions were and I think we ought to read the whole section, the two-page discussion of this question in the final report. That is our intention, yes.
The Joint Chairman (Senator Hays): Thank you very much. Mr, Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman. I want to go back to Section 23 and say that I agree with you and with Mr. Allmand and with many other people who have said that Section 23 discriminates against a lot of people when you talk about language first understood and first learned,
There are many different scenarios. Mr. Allmand has spoken about the Italians learning English in Montreal and moving out. There are dozens and dozens of combinations you could show where people have certain rights and other people who may deserve them more do not even have the same rights.
I want to ask you what your proposal is. I notice at the top of page 9 you are talking about adding mother tongue to one of the non discrimination rights. If you did this, would you eliminate Section 23 altogether? Perhaps you can elaborate a bit more on what you mean.
Mr. Juzukonis: Mr. Chairman, first of all the inclusion of mother tongue in the non discrimination rights in Section 15(1) was in direct response to Section 23.
Because we felt it was so obviously discriminatory we felt that we had to have some sort of protection against the possibility of future clauses or future legislation of that type.
What we would suggest is something to the same effect as was presented before this Committee by the Ukrainian Canadian Committee where a modification of Section 23 should read, we would suggest, and by no means am I suggesting the language is rigorous, that every citizen of Canada and every resident of Canada should have the right to choose his or her language of instruction. Obviously we are talking about the official languages.
We do not believe the unity of Canada or the interests of any cultural group or any cultural community or any language
community is served by the use of coercive techniques to guarantee that cultural community survival. We believe that what is necessary is positive actions, recognizing the historical trends that have created this anxiety within Quebec; and I think it is very clear the historical trends and the economic situation in Quebec where the domination of the capital industries and of the major industries was by anglophones forced not only immigrants but also French speaking Quebeckers to learn English if they wanted to seek any type of improvement in their lives.
We think and hope that the economic situation is now changing, because no matter what the course of techniques we might use, if the societal situation of Quebec is such that English is required for upward mobility, the eventual disappearance of the Quebecois as a separate cultural entity is guaranteed.
In the same way, I would like to just emphasize that we respect—and again there is not point in discussion among our Council as to the rights of French-Canadians outside of Quebec to choose French as the language of instruction; this is why we included our apprehension about the phrase “where numbers warrant”.
Canada is a bilingual country. We recognize, fully support and endorse that. In fact, if Canada was not a bilingual country, it is very doubtful that there would ever be an officially proclaimed policy of multiculturalism. I think that is clear to everybody.
The French have always regarded the non-Anglophone, non-Francophone ethnocultural communities as being some sort of a threat, some sort of a divisive element that the anglophones are going to use to diminish the role of the French in Canada.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Nystrom.
Senator Tremblay: Mr. Chairman, first of all, I would like to come back on the earlier remarks relating to the, shall we say, legitimity of the French language as a working language in Quebec which has been recognized by the witnesses who offered their views. I want to emphasize that recognition and that open mindedness that they express.
For our better mutual understanding, I would just point out that the frenchifying of the working language was not spontaneous, it flowed from a legislation, from Bill 22 which at the time was very strongly opposed.
I think that the very fact that you recognized today that it is normal, natural, demonstrates a real progress in the understanding of the Quebec situation.
However, given that fact, given the fact that the French language is establishing itself as the working language in Quebec, you tell us that Quebec could run the risk of freedom of choice for the language of education.
Since the situation is evolving and therefore in a way unstable, do you not think logical to ascertain, through some provisions relating to the language for education, the fact that the working language has become, also through a ligislation, a reality that you recognize today?
Consequently, would you agree to a transition period during which the two dimensions of the same problem consolidate one another and that, without closing the door to the future, some kind of direction in the choice of the language for education be deemed as a provisional but necessary phenomenon precisely to, once again, consolidate a fact the normality of which you recognize today and which was also the result of a legislation?
Mr. Juzukonis: Well, if you accept the proposition of a transition period, then I would suggest to you that you do not put this in the constitution; do not put those language requirements or educational requirements in the constitution, because they are not necessary.
Senator Tremblay: Then, I would ask a supplementary which I think follows exactly the answer that I just got.
Given, furthermore, the fact that the situation of the languages is very varied across the country, particularly as far as the languages for education are concerned, and given the fact that you just told me that because of the transitional feature of the Quebec situation we should not include this item in the Constitution, would you go one step further and would you say that, given the diversity of situations from one province to the other, it might not be through enshrinement in the Constitution that this question should be dealt with but through provisions which would take into account the diversity of regional situations or at least that if there is enshrinement, it should take into account that diversity. And, it reminds me of a proposal made by the Franco Manitobans who put to us the same problem and who said that the principle of enshrinement for the language of education should take into account regional diversities.
Would you yourself agree that the enshrinement for the language of education should not be a uniform provision but a varied one following regional realities?
Mr. Juzukonis: Mr. Joint Chairman, if I could just pose one question, if I may. I am not at all clear on one of the questions.
When you were referring to entrenchment of that diversity, were you referring to the entrenchment of something which would give recognition to the multicultural nature, or were you referring to the language of education solely?
Senator Tremblay: You indicated earlier, as an extension of the Molgat Committee, that languages other than French and English could be submitted to some provisions by the provincial legislatures, and that, for instance, since earlier we mentioned the importance of the Italian community in Ontario, Ontario could make room to education in Italian, perhaps even, it was implicitly said, that there be an official recognition
of Italian in Ontario because of the importance of the group, which is a way of taking into account the regional language reality.
Do you not think that in the final analysis the legislatures are in a better position to take into account the diversity of the regional situations rather than an universal provision that would apply to the whole of the country?
Mr. Juzukonis: Mr. Joint Chairman, I would like to comment on that. I cannot give you an exclusive answer to your question.
First of all, we have recognized the possibility of legislatures of regional differences in our suggestion of the addition of a phrase to Section 16(2) allowing a legislature to extend the status and use of any other language.
What our real problem is with not applying a uniform standard, another type of provision for the language or choice of language of instruction, is that we are unsure that French Canadians outside of Quebec will have the opportunity or the right to be educated in the French language.
If I could merely emphasize this point again, we are not suggesting that this provision, or Section 23 should apply only to Quebec and that the importance of our choice of language applies solely to Quebec.
We are suggesting, though, that the requirement for some sort of provision for the instructional language of education is important for those French Canadians outside of Quebec; that they have that opportunity to choose.
The Joint Chairman (Senator Hays): Thank you very much, Senator Tremblay.
At this time Mr. Leone and your colleagues, who appear on behalf of the Council of National Ethnocultural Organizations of Canada, we want to thank you.
I think you will be glad to know, that by 13 people asking questions, of the great interest in your brief.
I am sure everyone was impressed with your brief.
I want to thank very much for being here. We will take into consideration your brief during our deliberations. Thank your very much.
Mr. Leone: Thank you very much, Mr. Joint Chairman.
The Joint Chairman (Senator Hays): At 8 o’clock we have the British Columbia Civil Liberties Association; and at 9 o’clock, the Association of Métis and Non-Status Indians from Saskatchewan.
The Joint Chairman (Mr. Joyal): I will now ask the media people who are recording sound or film equipment to leave the room so we can proceed.
It is my pleasure tonight to welcome the British Columbia Civil Liberties Association, Mr. William Black, a member of the Executive Committee, and Mr. David Copp, Vice-President.
I understand that you will have an opening statement and that you would welcome questions by the honourable members of this Committee after you have concluded your presentation.
Mr. William Black (Member of Executive Committee, British Columbia Civil Liberties Association): Mr. Copp, if it would be all right, will start the presentation.
The Joint Chairman (Mr. Joyal): Certainly. Mr. Copp.
Mr. David Copp (Vice-President, British Columbia Civil Liberties Association): Thank you, Mr. Chairman.
This presentation of the British Columbia Civil Liberties Association is divided into two parts: first, 1 will discuss the philosophical and theoretical principles which underlie our support for the objective of entrenching a Charter of Rights; certain provisions found in the proposed resolution whose effect almost certainly will be to expose to fatal erosion the rights and freedoms listed here; and the mission of effective remedies which would make the Charter a truly effective document.
Second, my colleague, Professor Black, will examine the drafting of certain critical sections of the Charter, concentrating on the legal rights and on the nondiscrimination right.
We will refer to the following documents in addition to our brief: the international Covenant on Civil and Political Rights; Professor Tarnopolsky’s proposed Bill of Rights for Manitoba, published in 1978 as a special lecture of the Law Society of Upper Canada; and a discussion draft for the Canadian Charter of Rights prepared by the federal government and dated August 22.
We ignore large sections of the Charter with the general outlines of which we agree, though we do find drafting problems. For instance, with respect to language rights in the courts, Section 19 is unacceptably narrow. The right to use either official language should extend from the Supreme Court of Canada at least to the courts mentioned in Section 96 of the BNA Act, that is to superior, district and county courts, and should apply at least in serious criminal cases. However, let me turn to the main issues, beginning with general principles.
Democracy is a cherished value in our society, but democracy, we will be told, is inconsistent with constitutionally entrenching a bill of rights for it is not “consistent with the true concept of democracy for a court of appointed judges to be able to make a law with no power in Parliament to alter it”. Here 1 quote from Ontario’s McRuer report.
We must disagree. The purpose of entrenching a charter of rights in a constitution is to bar an elected assembly for taking certain kinds of legislative action. It is sophistical to equate the
action of a court in enforcing such a barrier with the action of making a law. if one truly believed that such actions by the courts were inconsistent with democracy. then one would have to oppose the federal nature of our country, for the federal division of powers places similar barriers in the face of elected assemblies.
One faces a dilemma. If the judicial enforcement of barriers to legislative action is inconsistent with democracy, then federalisim must go, along with the Charter of Rights. On the other hand, if federalisim is consistent with democracy, as is surely obvious, and as all the provinces would agree, then so must be the judicial enforcement of constitutional barriers, and so must be a charter of rights.
Some will raise a host of objections based on tradition, theory and practical concerns. It will be suggested that a charter of rights, that cases under the Charter of Rights would involve the balancing of competing principles, a task properly left to an elected body because only an elected body has the mandate and the resources, and because the courts position as politically neutral umpires would be compromized if they began to make policy decisions.
However, our courts already rule on similar issues. Even statutory interpretation can require policy decisions. Consider the interpretation of a statute requiring that drivers use due care. Our courts must also apply the 1960 Canadian Bill of Rights and have built up jurisprudence on the relevant language. Our courts already apply the BNA Act in ruling on the constitutionality of statutes, and in so doing must weight conflicting principles.
Clearly. the courts will not find unfamiliar the task of applying a Charter of Rights.
Some will say that we are asking that the British tradition of Parliamentary sovereignty gave way. Arid so we are. However, in the first place, we are a federal state and this means that no elected assembly in our nation, federal or provincial, is ultimately sovereign. Nor are powers exhaustively distributed among the levels of government. The BNA Act, in Section 93, Sections 96 to 99, and Section 133 contains what constitutional experts refer to as”‘the little bill of rights”; guarantees which no legislature has the power to change. So Parliamentary sovereignty is incomplete as matters stand.
The Joint Chairman (Mr. Joyal): I am sorry to interrupt you. I would like to ask you to slow down if you would because the interpreter is having some difficulty in staying with you.
Mr. Copp: I understand. I will try and go a bit slower.
Anyway, as I was arguing, Parliamentary sovereignty is incomplete even as matters stand today.
In the second place, there is good reason for placing further limits on the powers of Parliament and the legislatures. The people understand these reasons. Certain rights ought to be outside the power of governments. No one seriously disputes
that there are certain things it would be wrong even for an elected assembly to do. If we all agree that the rights and freedoms listed in the Charter ought to be respected by all governments then why should we not remove from Parliament and the legislatures the power to infringe them? The constitutional entrenchment of a bill of rights is meant simply to place potent protective barriers around these rights.
The courts will be in a better position, given an entrenched Charter, then either they or the Parliament now are to protect basic rights. They have nothing to lose and nothing to gain by taking the principal course in interpreting a constitution, for they are insulated from political pressures. Political institutions, however, because they are elected, place their members in the unenviable position that shifting public opinion in times of high emotion can force actions which, in a cool hour, most would regret. Let us, therefore, remove our rights from the easy reach of future Parliaments and legislatures. However, if we are going to place a Charter of Rights in our constitution, let us not perpetrate the hoax of the present Charter.
We call it a hoax because of two sections, both of which have been discussed extensively. We beg your indulgence, however, because we believe we have something to add.
The first and most obvious problem is with Section 1, the general limitation section. It provides, as we all know, that the rights set out in the Charter are subject to “such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”. I assume it is now agreed that this Section is unacceptable. With this section the Charter would create completely unfounded expectations. There seems, in this Section, to have been an attempt to reconcile Parliamentary sovereignty with an entrenched bill of rights, but is must be admitted, and squarely faced, that this cannot be done.
Given the tenor of the submissions you have heard, you might think that it would be satisfactory merely to eliminate the reference to parliamentary sovereignty by deleting the phrase “with a parliamentary system of government”, but this would be no improvement. The section as amended still would allow such limits on our fundamental rights as are “reasonable” and “generally accepted in a free and democratic society”.
How are the courts likely to interpret this? Surely, the only test of what is generally accepted in a free and democratic society would be what is generally accepted in this society, and the only test of this would. be what has been passed into law by our democratic assemblies. Therefore, the only test of legislation provided by the Charter, even given that amendment, would be a vague and undefined test of reasonableness. The courts, moreover, might well decide to leave the issue of reasonableness to the Parliament and the legislatures. If so, our Charter would be disentrenched.
Now, it is obvious there can be circumstances in which the rights listed in the Charter would have to give way. In times of serious crisis threatening the existence of the nation, such as invasion, insurrection, large scale natural disaster, a temporary emergency limitation on our fundamental rights might be necessary. This is obvious. In fact, it is so obvious and so widely agreed, that, given the difficulties in drafting an acceptable limitation clause, it might well be wiser to leave one out.
We cannot now foresee all the situations that might justify temporary emergency limitations. It might therefore be best to let the courts decide in particular cases when the facts of an emergency are known.
However, if there is to be a limitation clause, it must indicate clearly that most contingencies that face the nation are to be dealt with by ordinary means which respect the rights guaranteed in the Charter. It must indicate clearly that limitations are justified only in times of “public emergency which threatens the life of the nation”, and then only “to the extent strictly required by the exigencies of the situation”. Here we use the language of the international Covenant on Civil and Political Rights, Article 4, Section 1, to which Canada is a signatory. We recommend this language to you for your consideration.
Further, if there is to be a limitation clause, it must clearly indicate that limitations on the Charter justified by public emergency are temporary. We would argue for the inclusion in a general limitation clause of four subsections, the first requiring prompt Parliamentary authorization of the invocation of special powers under emergency legislation, such as the War Measures Act.
Second, requiring regular renewal of this authorization if the powers are not to lapse;
Third, allowing a small number of members of either House to force review of the authorization;
And fourth, allowing any innocent person damaged under the special powers to seek compensation in a special tribunal. These matters, I should point out, are discussed more fully in the appendix to our brief.
A second clause which we think undermines the entrenchment of the Charter is Section 42 which provides that when and if part 5 of the constitution act comes into force, the Charter could be amended by referendum. We think that this endangers the Charter.
A referendum proposing a substantial change in the Charter is most likely to be fought and won during a period of high emotion. This is precisely when the protection the Charter provides our basic rights and freedoms is most needed, The tradition of careful deliberation and rational debate which exists in our Parliament and legislatures, protected as it is by procedural rules, makes it safer to require that the Charter be amendable only by the procedures specified in Section 41, or whatever replaces it in the final version of the constitution act.
The third main issue which I wish to raise is that the proposed Charter provides inadequate remedies to persons whose rights are infringed by official action. A charter with the remedies of this Charter will turn out to be a hoax for many persons in many circumstances. I refer now to Sections 25 and 26.
First. Section 25 reasonably provides that laws that are inconsistent with the Charter are, to the extent of their inconsistency, inoperative. This does not go far enough, because many official standards which are not laws may be objectionable. For instance, a rule within a penitentiary could authorize a cruel punishment. In this case, a court asked to protect inmates in light of Section 12 of the Charter should have the power to strike down the offending tule without having to interfere with any statutes.
Accordingly, we suggest that Section 25 be amended to follow Section 26 of the discussion draft of August 22, which reads “that any law, order, regulation or rule that authorizes, forbids or regulates any activity” in a manner inconsistent with the Charter may be declared inoperative.
The existing Charter provides no remedy for any violation of the Charter other than the striking down of legislation. Section 26 even eliminates the possibility that the courts might rule that evidence obtained in a way that violates the Charter is inadmissible in a legal proceeding. The result is that rights in the Charter are explicitly protected only from legislative infringements.
It is obvious, however, that many official actions not explicitly authorized by legislation can be in violation of the Charter. For instance, administrative officials and public agencies could violate the Charter by their actions and there may be no remedy available to aggrieved persons.
Consider Section 8, which sets out one of the legal rights. It prohibits unlawful search and seizure.
Leaving aside for the moment our objections to the wording of that section, it is clear that it means nothing at all unless someone who has been subjected to an unlawful search has some recourse. Testimony before the MacDonald Commission has revealed that between 1972 and 1976 many premises in British Columbia were searched by police without any legal authorization, and I should add that in most cases the searches did not lead to the conviction of anyone for any ofence.
Again, consider Section 10(b) which requires that someone who is arrested has the right to retain and instruct counsel without delay. The existing Bill of Rights contains a similar guarantee, but in a 1975 case, Hagan versus the Queen, it was found that a person has no remedy if that right is violated.
Surely we need not argue that remedies are required and that it would be valuable to list them. Accordingly we recommend the wording in Section 27 of the discussion draft which
allows a person to apply to the courts to obtain relief or remedy by way of declaration, injunction, damages or penalty.
Now, in many cases the Charter could be violated in the course of obtaining evidence that someone has committed an offence. In many such circumstances the only effective remedy would be for the court to refuse to admit such illegally obtained evidence. Section 26 would prevent the courts from providing this remedy even in the most extreme circumstances.
Accordingly, in order to give full effect to the legal rights, we believe that at the very least Section 26 should be deleted so that the courts may exclude evidence gained by means of violation of the Charter if they think it is appropriate.
Ideally we think Section 26 should be amended to provide that evidence obtained by means which infringe upon or violate the rights listed in the Charter shall not be admissible in judicial and quasi judicial proceedings. This, the exclusionary rule, is necessary because the use of illegally obtained evidence in obtaining convictions discredits the judicial process and the law enforcement system and would undermine respect for the Charter of Rights.
Convictions for illegal acts should not rest on grounds themselves tainted by illegality.
Let me conclude with the remark that far from democracy being inconsistent with an entrenched Charter of Rights, the substance of democracy in a pluralistic society depends on the security of the rights we all wish to see entrenched. The real choice is between principle and power.
The Joint Chairman (Mr. Joyal): Mr. Black.
Mr. Black: I will be dealing first with legal rights, Sections 7 through 14, and then with the right to equality.
We have a number of concerns about these rights and we would like to propose some differences or some amendments for your consideration. One of the most basic rights, of course, in any system of legal rights must be the right to the application of fair procedures and that should be applied both in criminal cases and in civil cases.
We look first in the Charter for what protection would be given in a non-criminal case and we find that there is almost no protection in the Charter. For example, a hearing that concerned a person’s right to a pension, or a hearing that concerned a tax assessment, or a hearing that concerned workers’ compensation benefits would not be included within the protections of the Charter. There would be no right to a fair hearing given by the Sections that are presently in the draft.
We would find this surprising in any event, but we find it especially surprising in light of the fact that there is no provision comparable to the present Section 2(e) of the existing Canadian Bill of Rights. In other words, in this respect, with regard to non-criminal proceedings, the Charter seems to be a step backward instead of a step forward as we would hope.
We would urge that the submission be rectified in your considerations and amendments of the Charter, and in particu-
lar we would recommend to you the language of Section 11 of the proposed bill for Manitoba prepared by Professor Tarnopolsky. Alternatively, we would propose that at least a provision comparable to Section 2(e) of the existing Bill of Rights be incorporated in the new Charter. We think that is less beneficial than the Manitoba draft because it is not clear that the Bill of Rights covers all administrative proceedings, but it would at least not be a step backward to include that right.
I would like to turn now to criminal proceedings. We have a number of concerns about the rights that the Charter gives with respect to the Criminal process. In many cases it seems that the rights that are given in the first half of the Section are snatched away by the second half of the Section. I am sure there have been other submissions to the Committee concerning Sections 8, 9 and 11(d), all of which are qualified by the provision that it is “except on grounds and accordance with procedures established by law”. In the case of Section 8, with search and seizure; Section 9, with arrests and detention, and Section 11(d) with regard to bail.
We think in effect this is what those sections then mean. Section 8 means that everyone is protected against unreasonable search, unless Parliament or any provincial legislature decides otherwise. Section 9 means a Parliament or provincial legislature can authorize detention or imprisonment for any reason whatsoever, or indeed for no reason at all. Section 11(d) means reasonable bail could be denied without reason.
We hope in your consideration of the proposed Charter that you will strengthen and change these sections. As they now stand we think that they give no rights whatsoever and we would prefer that they be omitted from the Charter rather than stand as they are. We hope, however, that you will revert to the language of the August federal draft submitted to the provinces in Sections 7, 8 and 11(d), which we think give much more effective protection with regard to those rights.
We are also concerned about the provsions of right to counsel. Right to counsel is mentioned in Section 10(b) but we are concerned that the right to counsel should be a practical right as well as a right in theory. Therefore, we would urge that first you include in the Charter a provision that people should be informed of their right to counsel and that they should also be informed of the other rights stated in Section 10 and Section 11.
Secondly, we propose that the Charter be amended to include the right to be provided with counsel in serious cases if an accused person cannot afford counsel. We do not think that justice is something that can be denied for lack of funds and we believe that in many serious criminal cases, it is absolutely essential that the accused have the assistance of counsel if the accused is to have a fair trial.
Therefore. we would urge you to adopt the substance of Secon 3(d) of Article 14 of the International Covenant of Civil and Political Rights.
We are also concerned that Section 13, the right against self-incrimination, protects witnesses but it does not protect accused persons. In that regard, we would urge that you add to Section 13, the protection that an accused has a right to remain silent at his own trial. That is one of the oldest and most basic rights in our criminal system. We hope that it would be incorporated in the Charter.
The language of Section 3(g) of Article 14 of the International Covenant would achieve that purpose.
We would also recommend with regard to Section 12 which concerns cruel and unusual punishment, that you consider the wording of Arcticle 7 of the International Covenant. As presently worded, it would seem that no matter how cruel punishment would be allowed as long as it were not unusual, and that is also the interpretation that has been given to those words by the Supreme Court of Canada. The International Covenant language would avoid that problem.
We have a number of other concerns about criminal safeguards hut I would like to turn quickly to the right to equality in Section 15. That is a basic and important right, but a difficult one to understand. There are many misconceptions about what the right to equality does.
The right to equality does not prohibit legal distinctions that serve legitimate governmental objectives and are not discriminatory. Certainly, the right to equality as it has been interpreted everywhere does not prohibit a law that says you have to be of a certain age to drive a car or to vote, for example. What the right to equality does do is protect against unreasonable distinctions or those enacted for discriminatory purposes.
I would like to run through what we think are the minimum objectives of any right to equality and then compare the language of Section 15 with those objectives.
First, we think it is essential that the right to equality protect against all unreasonable forms of discrimination. The right to equality of all things should not be given to some and denied to others. Unfortunately it seems that Section 15, as it is presently worded, may do just that because it provides that everyone has the right to equality “without discrimination because of race, national or ethnic origin, colour, religion, age or sex”.
It would seem then that the Charter would not protect against unreasonable discrimination on the ground of political beliefs, or unreasonable discrimination on the ground of physical disabilities or unreasonable discrimination on the ground of sexual orientation. We wish to re-emphasize here that the right to equality does not mean that all groups have to be treated absolutely equally in all circumstances. It prohibits unreasonable and discriminatory distinctions. With that qualification in mind. there seems to us no reason not to extend it generally to all people in society and to prohibit all unreasonable discrimination.
In this regard we have had the advantage of submissions of the Canadian Human Rights Commission to this Committee and we believe that either of the alternative proposals that were made in the submission of the Commission would be a big step in the right direction.
A second objective of the right to equality is that it should apply both to equality in the application of the law and in the substance or content of the law. I understand other groups have raised the Lavell case before you where the Supreme Court seemed to hold that it did not apply to equality in the content of the law.
There is a difference in wording between the proposed Section 15 and the existing language of the Canadian Bill of Rights. Section 15 adds the words “equal protection” and we are hopeful that that would extend the right to equality, not only to the application of the law but also to the content or substance of the law. However, we understand that others have doubts about this and if there is any doubt about it we recommend that the language be modified to remove that doubt.
A third objective of any charter must be to allow affirmative programs to aid disadvantaged groups or groups that have suffered discrimination in the past. That is the intent, it seems to us, of Section 15(2) and we are wholly in sympathy with the intent of that section. We understand again, however, that there is some concern that the word “disadvantaged” may be interpreted narrowly by the courts so as not to give protection to all groups who have historically suffered from patterns of discrimination, and in particular, women. If there is any dobut about that, we would recommend that again you consider modifications to remove that doubt.
That is the end of our regular submission. We have many other points, if we had unlimited time to give to you; but we hope that we will have time to answer your questions.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Black.
I would like to invite the honourable John Fraser to open the discussion with our guests tonight.
Mr. Fraser: Thank you very much. Mr. Chairman. I think I am speaking for all of my colleagues here of whatever party in welcoming you to our deliberations. I must say I give you sort of a special welcome, and you will understand why.
Unfortunately, you are not going to have enough time in front of us to do justice to what you have placed in front of us by way of the presentation you have just made, and by way of the written material that you have already filed. I do not want to get into an argument about that. You have been very vivid in your comments in your written material as to your view that what we are trying to do here in writing a constitution or making significant changes to our constitution requires more time and more public education than has taken place. I happen to agree with you about that. I do not think that we have that much in the way of time tonight for me to spend time on that issue. There is a division of view in this Committee on that issue and I think that is something that you are no doubt
aware of. I just want to tell you I agree with you, and I am alarmed because what started off a couple of months ago with the fairly enthusiastic idea that we could he doing several things that are long overdue, affirming and securing rights. patriating the constitution, finding a way to change the constitution within civilized rules. These are all things people wanted, but the substance of the proposal that is in front of us is in my view extremely flawed and your recommendations tonight have just confirmed that.
I want to ask you if this document in its present form is recommended back to Parliament by a majority in this Committee, what is your reaction going to be?
Mr. Copp: I cannot believe that the Committee would do that. If the document were recommended with the inclusion of the present Section 1 with no changes having been made, I would be astonished. I cannot believe that you can ignore the arguments that have been presented before you and I cannot believe that you would see any point whatsoever in including in our constitution the document that you have now.
However, with a revised Section 1 and with the revisions that we are proposing, I think there could be a substantial improvement in the legal situation in the country, so I would hope that you would take seriously the arguments that we and that others have presented and make the changes, serious though they be, that would make this into an effective document.
Mr. Fraser: I can assure you, speaking for myself, I am not only taking your representations very seriously but the representations of a number of other very, very effective and thoughtful briefs that have come in front of us.
But I want to ask you this. It really almost requires a rewriting of this proposal and not just on the Charter of Rights aspect but also on the question of the amending formula and some other provisions. My worry is this; I was a lawyer for many years before I become an elected member as you both know, and my concern is that the words will govern us. There is no use getting around that, no use just listening to rhetoric, and my worry is what has happened as a consequence of groups like yourself. You have come in front of us. You have pointed out the pitfalls and the shortcomings; you have made recommendations, not always consistent one with the other depending on which group you were, but where are we going to find time to take a second quiet look at what would be in effect a very significant redrafting of the present proposal?
I am inviting you to comment because the public has to know that that is a dilemma we are in.
Mr. Black: We understand that this Committee has a very onerous responsibility in this regard. We do not draft a constitution every day. On the other hand, we believe very strongly in the principle of an entrenched Bill of Rights and with our criticisims of this we hope that we have not undermined the possibility of achieving an entrenched Bill of Rights.
I agree with you, there is much redrafting that needs to be done and we have tried to point that out. The one factor that perhaps gives us a bit of help is that there are other drafts.
There is the International Covenant of Civil and Political Rights which Canada is a signatory to. We have found in many cases substituting the language of that International Covenant would solve problems. There are also prior drafts that have been submitted and there are also drafts such as Professor Tarnopolsky’s draft. So I agree, it is a very difficult process. but we hope that in making these submissions we have not eliminated the possibility that Canada could in the foreseeable future at least have an entrenched bill of rights.
Mr. Fraser: May I just respond to what you said. I do not think in making the representations you have made that you have made the objectives that you seek more difficult but what we are concerned about around here, no matter what philosophical side one wants to get into on the endless debate about whether rights are better secured one way or the other, if you believe that we have historically had a mix of both things in this country then I think we can find a way. We have to know the flaws that are in this and we have to be realistic about how much time it is going to take to sort it out. I am not talking about endless delay but I certainly know that we cannot get it done by the first of January.
I want to turn to another item. I am very intrigued that you have mentioned Section 42, the referendum formula, and pointed out to us that if that power which now rests under this proposal so exclusively with the federal government were abused by a federal government some time in the future that the very rights that one would secure even by entrenchment could be eliminated by an appeal to an enraged public over the heads of the legislatures and over the heads of some of the calmer members of Parliament and the public that one would hope would be above it. I just wonder if you could give us some comment about that with respect to the referendum as you see it.
Do you care to comment on that with respect to the referendum as you see it?
Mr. Copp: Well, I do not really know what can be added to what is already in our brief and to what I have already said in my talk.
Again, it would be safer to provide that the charter can only be amended by the procedure which requires the concurrence of the relevant parliaments and legislatures rather than by referendum. That would be safer—l hope so, at any rate; because the traditions of rational debate in legislatures would mean it would be more difficult to achieve any significant and regrettable change in that way than through a referendum.
Mr. Fraser: You realize that under this proposal there is the option for two years for the provinces to try again to come up with something on which they are in common agreement so far as an amending formula is concerned; and that that would then be put up to the referendum of the Canadian public against the existing proposals or some other proposals that the federal government would put forward.
Of course, if you can get unanimity, if you can get the federal government and the provincial governments to agree that using the referendum in this way was not satisfactory and that there was a better way, we could get on with this very quickly.
Do I take it you would encourage all of the provinces and the federal government to take a second look at this and to come to some kind of agreement, keeping in mind the dangers you have already pointed out?
Mr. Copp: I think you can take our talk and the brief as that encouragement.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Fraser.
I would like now to invite Mr. Robinson, followed by the honourable Senator Jack Austin.
Mr. Robinson: Thank you, Mr. Joint Chairman.
I would like to join with Mr. Fraser in welcoming this delegation. As he implied, certainly those of us from the province of British Columbia, are aware of the respect with which this delegation is viewed within that province, and in view of the excellence of your submission here tonight, I think that is very understandable.
Mr. Fraser: On a point of order, Mr. Joint Chairman?
The Joint Chairman (Senator Hays): Mr. Fraser, a point of order.
Mr. Fraser: Mr. Joint Chairman and Mr. Robinson, I do apologize for interrupting you. But I think I should say to our guests who are here tonight from British Columbia that I have to leave because I am in charge, as a member of the opposition, of another debate in another Committee on the Post Office bill, and I do not want you to think that I am leaving on account of rudeness or lack of any interest in the matters that you have brought before us.
Thank you very much, Mr. Robinson.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser.
Mr. Robinson: Thank you, Mr. Joint Chairman.
Certainly you have indicated that you hope you had something to add to the briefs which have been submitted to us so far.
I believe it is very clear that, in a number of respects you have. You have touched on areas which so far have not been touched on by other groups, and I know that the Committee will find that so useful in its deliberations.
I would like, for a moment, to deal with the question of process. You have touched upon this question as well as the substance.
I wonder if you might be interested in commenting on the suggestions made by some individuals, and perhaps political parties as well, that rather than taking this opportunity now to entrench a charter of rights binding on the provinces and the federal government, that, instead, what we should be doing is to wait and just bring the constitution home without any kind of charter of rights and letting the provincial premiers, together with the Prime Minister decide whether Canadians are entitled to a charter of rights, and if you could comment on that, particularly in view of the fact that at the last federal provincial conference some seven out often provinces indicated that they were opposed to the concept of the charter of rights? Do you think we should be acting now?
Mr. Black: Speaking on behalf of our Association, we have made our submissions primarily—and our considerations have been—with regard to the charter. We are, as I hope it is clear, anxious to have a charter. We are anxious to have a good charter and our proposals have been made in the expectation that there will be a charter of rights enacted in the foreseeable future.
Beyond that I cannot speak on behalf of the Association.
Mr. Robinson: Thank you.
You have referred, as other witnesses have, to Section I, which has been pointed out would permit the proclamation of the War Measures Act in the same terms as in 1970, and will permit the internment of Canadians of Japanese origin and the confiscation of their property.
Would it be fair to say you would agree with the suggestion of the Canadian Civil Liberties Association that if Section 1 is not rewritten and perhaps if there is not a remedies section—I believe those are the two sections you have pointed out as having perhaps the gratest weaknesses in the proposed charter—and indeed, we would perhaps be better off not giving the Canadian people the illusion that they have certain rights, but rather that we would be better off without this Charter, if those sections are not in fact amended?
Mr. Black: The other way in which, perhaps, you could put it, is that if we do not amend the section, Section 1, we would not have an entrenched charter, even if we were to enact this document.
Section 1 imposes such severe limitations on the whole concept of an entrenched charter of rights that it has to be removed to give any effective force to entrenchment.
Mr. Robinson: You have also singled out the lack of any effective remedies section whatsoever in the proposed Charter, as being perhaps the second major area of concern that you would have. Would that be an accurate view of your order of priorities?
Mr. Black: Yes.
Mr. Robinson: Now, on that question there some who suggest, including the Canadian Association of Chiefs of Police, that you do not need a remedies section, because there is already provision, for example, for the laying of criminal charges against police officers who violate the law or the provisions of the proposed charter.
What would be your comment on the suggestion that we do not need a remedies section, and that it is sufficent to have laws rendered inoperative which violate the proposed Charter?
Mr. Black: Our answer to that, I guess, would be that the whole concept of a charter of rights is based on the assumption that we cannot assume that all the rights which would be available to us at this moment would be available to us forever.
The whole principle of entrenchment is that at some future date, for some unforseen reason, the rights which now exist, or even the common law remedies which now exist, may be restricted by an act of parliament or a provincial legislature or by some other means.
And that is why we need an entrenched charter of rights.
So, of course there are other means to protect rights in Canada. Canada has rights now. The danger is that those rights can be taken away so easily. We are in favour of an entrenched bill of rights in many cases, not to create new rights or extend them, although in some cases we have made recommendations along those lines; but to ensure that the rights we now have will also be available in the future.
Mr. Robinson: Presumably, though, you would agree that, without a remedies section, many of the rights which Canadians might think they would have, would, in practice, be nonexistent.
Mr. Black: As Professor Copp has pointed out, many of the sections refer, not to law, but to the acts of public officials, that a person arrested should be informed of the reason for his arrest and so on. It is public officials, rather than law which would take away those rights.
Yet, the only remedy is Section 25 which refers to discriminatory laws, without giving any remedy with regard to discriminatory acts by public officials.
Mr. Robinson: Thank you, and I am sure the Committee has been listening very carefuly to that particular point,
With respect, again, to Section 1, you have indicated in a very useful appendix to your brief, some of the limitations which you think should apply to certain of the rights. Now one
of the areas you did not get into, but which the Covenant on Civil and Political Rights covers in its proposals, is that there are certain rights, the antidiscrimination rights, for example, the right not to be subjected to cruel and unusual punishment, certain rights which, even in times of war, or insurrection, whatever that means, should never be taken away.
Although you have not addressed this point, presumably you would agree that there are certain rights which, indeed, should not be abrogated even in times of war?
Mr. Copp: I do not think the Association has gone through this in detail in an attempt to set out which rights should be exempt from a general limitation clause and which should not.
But I think it would be reasonable to suppose that if the general limitation clause should be applicable only in situations of public emergency, that it would be very difficult to see how the discrimination rights, for example, or the right not to be subjected to curel and unusual punishment, how the viola- tion of either of these rights could contribute to society effectively dealing with public emergency.
So, for this reason, I would think it would follow from a sensible wording of the general limitation clause, that certain rights ought to be excluded.
Mr. Robinson: Yes, thank you.
You have drawn our attention to a very important omission in the proposed Charter, namely, the omission with respect to the right to a fair hearing in noncriminal proceedings.
I wonder if it would be fair to characterize your response as being almost suggesting that it must have been an oversight on the part of the drafters of this proposed Charter in their haste to draft it, particularly in view of the fact that there is a similar provision, as you have proposed, contained in the Canadian Bill of Rights?
Can you elaborate on your concerns about this omission?
Mr. Black: It is hard to elaborate too much.
But we think it is extremely important. Most citizens, I suppose, will be involved in legal proceedings of a noncriminal nature. The average citizen should be protected by the Charter as well as people who are charged with criminal offenses.
It seems to us that the vast majority of administrative proceedings would be ommited from any protection of a fair hearing under the wording of the Charter as it now stands. We hope it was an oversight and therefore that once it is pointed out it will be rectified.
Mr. Robinson: Thank you, just a couple of brief more questions, if I may, Mr. Joint Chairman.
The first question relates, again, referring to the brief of the Canadian Association of Chiefs of Police which was supported in this respect by the association of Counsel, suggesting that we should not include a reference to freedom on conscience in
a proposed charter of rights. because, as the police chiefs put it, our courts might strike down certain laws which would be rendered, or which they might view as inoperative as a result of the elimination of freedom of conscience.
Do you believe that there is any validity to that criticism, and that we should maintain the concept of, freedom of conscience in the charter of rights?
Mr. Black: It seems to me that the value of including freedom of conscience as well as freedom of religion is that it makes clear that people can have very deeply held beliefs that they might not call religious beliefs, but which are equally fundamental to them, and using the phrase “freedom of conscience” it gives them rights as well as people who deeply hold religious beliefs.
It seems to me that the possibility that the Supreme Court of Canada or any other court would interpret that in a way which would hinder law enforcement is nonexistent. I cannot imagine the court giving it any such interpretation.
Mr. Robinson: I might say in passing that I am certainly pleased that you have touched on a couple of other areas which perhaps deserve illumination, the absence of any right to remain silent on the part of the accused, which is something contained in the International Covenant; the right to trial by jury by one’s peers, which hopefully, will be dealt with in the amendments.
My final question relates to the proposed Section 15 called the andtidiscrimination section. You have made some very useful suggestions on improving the wording of that Section.
Would you agree that in its present wording, in many respects, there is almost an indication that on the grounds which are not specifically delineated, that there is no requirement whatsoever to prevent discrimination on those grounds, and that not only should we include the kinds of grounds which you have suggested, such as political belief, and the handicapped—and I would assume that is mental as well as physical handicap?
Mr. Black: Yes, it would be.
Mr. Robinson: And other specific grounds—you have referred to these at page 12; that you will agree that it may be desirable to allow flexibility in the future, and to say on grounds such as those grounds and also perhaps to refer to “distinction” rather than to “discrimination”, in view of some of the adverse interpretations of the word “discrimination”.
Mr. Black: Perhaps I was not as clear as I should have been.
We believe that the right to equality should apply to everyone on any ground. There should be no limit on the grounds of discrimination covered.
If it protects against unreasonable discrimination, that unreasonableness may be with regard to any ground, and it would be impossible to come up with a comprehensive list.
So we agree that changes are needed to make sure that if there is any list at all, which was one of the alternatives of the Canadian Human Rights Commission, it should be made absolutely clear that it merely gives examples of some of the grounds which are included. and that it does not exclude the possibility of protecting other groups from discrimination on other grounds.
Mr. Robinson: Thank you, Mr. Joint Chairman.
The Joint Chairman (Mr. Joyal): Thank you Mr. Robinson.
Honourable Senator Jack Austin, followed by honourable Perrin Beatty.
Senator Austin: Thank you, Mr. Chairman.
May I also add a welcome to Professors Copp and Black, this evening. Up to now, getlemen this has been an all British Columbia night.
I very much appreciate your brief. If I may begin with a small editorial comment, I am in league with much of it.
I want to make it clear that my colleagues in the government join me in seeking a number of amendments to the joint resolution which our government has tabled before us for discussion and report.
I feel the need to remove any possible suggestion that the purpose of this discourse and your evidence and that of others is otherwise than to look very seriously at these provisions and to make changes where they are clearly required.
I would like to begin by welcoming your clear and unambiguous declaration that entrenchment is an important first step to achieving even a modestly satisfactory level individual rights in this country.
Mr. Fraser—and I regret that he is not here—dwelt at length on the question of your being rushed and having inadequate opportunities to present your views and also that the Committee did not have adequate time.
But I see that your brief was submitted quite early and at a time when you might at least have assumed that the Committee was dealing only up to December 9th.
I also agree with you, and I will get to some questions, I can assure you; but I want to have a common foundation for these questions.
I also agree with you that there are certain rights which must be put outside the reach of. or the sovereign reach of the legislatures.
Now I would not go in extenso with you on that one, because we are on all fours.
May I say that my view is that Section I does need redefinition. I began by asking Mr. Chrétien, the Minister of Justice, at the earliest time, questions about those
reasonable limits generally accepted in a free and democratic society with a parliamentary system of government. I had a considerable degree of difficulty with it. But I think you would understand what the government was endeavouring to achieve as a first step, which was to go only so far as they believed that at some point in the history of these negotiations the provinces had concurred in some level of agreement.
Now, what we have heard from you and others who have come before us is that we should go further. It is said that we should act unilaterally if necessary in the interests of entrenching this standard of right.
Is that correct? Are you asking us to move in that direction?
Mr. Black: Our position is as a civil liberties association. You know what our tax status is. We are not a political organization.
We have made all our considerations on the assumption that the government was going forward and therefore we have limited our consideration to what should be in the charter if the charter is going forward.
We would be exceeding our powers to go beyond that.
Senator Austin: I thought Mr. Fraser showed such good ability in leading the witness, that I thought I would be as good.
Let me ask you about the very interesting discussion you had under Section I and your reference to the emergency powers legislation. You are concerned about the phrase “apprehended insurrection”. That strikes me as a very important issue for this Committee to understand.
You are aware, of course, that to some degree. at least, the events of October 1970 were that kind of event, and that kind of apprehended insurrection; and in the world of revolution there are very, very interesting tracts by revolutionary writers about how to develop and create revolutionary activity.
The question I am concerned about—it is a civil rights question—is this: how can a State defend itself against this particular problem of a concerted action to force a change by a group that does not have any authority in law and at least have some reasonable basis to anticipate events?
I think I know what you are saying—and I may be wrong-that the blow must fall before there can be any reaction?
Mr. Copp: If I may respond to that, I take it that the term “apprehended”, means, roughly, to expect with fear.
One would assume that at least it should be expected that the expectation be reasonable before any invocation of emergency powers should be allowed under the constitution.
Presumably, also, if Section I were reworded such as to allow the invocation of emergency legislation in a situation of public emergency, that would cover, I would think, reasonable expectation of insurrection, war, or what have you; because one would assume, if I were standing over your head with a club, you would be in a situation of emergency. Similarly, one
would assume if the troops were on their way to our shore, that we would be in a situation of public emergency.
Therefore, I think the language “apprehended insurrection” or what have you, is dangerous, because, for one thing, it does not contain the restriction that the apprehension must be reasonable, and for another, the language which refers to a state of public emergency I think would cover reasonably cases where the expectation is reasonable.
Senator Austin: Well, would you accept in some form the notion that “has reason to apprehend”? Would that be acceptable to you? And then of course the government must show the basis on which it acted, it will have to do that after the event?
Mr. Black: That concept may be included in the language of Article IV of the International Covenant which says an emergency which threatens the life of a nation. That is the language that seems internationally acceptable and we believe that would be sufficient to allow powers in the legitimate circumstances where it was needed, but it would also, we hope, be effective in preventing hasty and what seemed in hindsight unjustifiable actions.
Senator Austin: So you are not seeking to deny the state an appropriate remedy in cases where some internal insurrection might be about to be launched, but you are asking the state demonstrate its necessity after taking the steps on its responsibility?
Mr. Black: Exactly.
Senator Austin: Right. May I take us quickly to Sections 8, 9 and 11, on which you made comments, particularly your criticism of the phrase “except on grounds in accordance with proceedures established by law”. I agree with your concerns about the wide-open nature of that language and its lack of protection of rights.
Do you have a suggestion as to how we could approach a redraft which would take into account the more legitimate concerns of the draftsman in that particular section under legal rights?
Mr. Black: The draft submitted to the provinces in August by the federal government said everyone has the right to’ be secure against unreasonable search and seizure. Section 8 of that draft said everyone has the right not to be arbitrarily detained or imprisoned, perhaps unreasonably and arbitrarily would be even more advantageous.
Section 11(d) said everyone has the right not to be denied reasonable bail without just cause. I think that the draft of August fulfills many of the objectives that we hoped would be fulfilled.
Senator Austin: In general that draft would be acceptable to you?
Mr. Black: At least those sections. I hate on the spot . . .
Senator Austin: The points you have made, yes, of course.
Could I take you, and I am hurrying along because the clock is running on me, could I take you to page 12 of your brief. I found it most interesting that you were suggesting extending
the use of the two official languages to provincial courts, having the same jurisdiction as the B.C. Supreme Court and B.C. Court of Appeal, and you know that your suggestion requires us to impose ourselves on the legislature of the province of British Columbia but your recommendation is we should do so.
Mr. Black: It seems to us, at least with respect to serious criminal matters, for an accused who is a citizen of Canada not to be able to have the case argued in the language that that citizen understands is a very severe intrusion on that citizen’s rights, especially since there is a similar protection for the English minority in Quebec. We think it is reasonable to have comparable protections in other parts of the country where French is a minority. It would cost something but we think the cost is well worthwhile.
Senator Austin: I want to say that I agree it is reasonable and I hope it will prove to be practical.
On page ll you refer to native rights and in particular you talk about the Charter may preclude the federal government from exercising its constitutional powers under Section 9t (24) to protect the rights of the native people and I wonder if you could extend your comments there? I do not quite grasp the concern that you have.
Mr. Black: It is a difficult matter for us because this is a matter that we think really native groups should be making submissions, and we understand they will be if we leave.
We are very concerned and we urge you to consider those submissions by native groups. What we are worried about is the right to equality, one of our concerns at least is that the right to equality might be interpreted in such a way as to take away protections that are presently available to native people and that the constitution would not give native people alternative protections that they might need. However, we think it is for them to speak for themselves and hope you will give their submission your careful consideration.
Senator Austin: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Senator Austin. The honourable Perrin Beatty followed by Mr. Ron Erwin.
Mr. Beatty: Thank you very much, Mr. Chairman,
Gentlemen, much of your presentation tonight dealt with the question of the worth of constitutionalizing a Charter of Rights, what the benefit is to Canadians of actually writing it into the constitution to make sure that it is put beyond the reach of Parliament or the legislatures to take away rights unilaterally. I gather that essentially your rationale is, from the point of view of Canadians, the advantage to constutionalizing rights is that it puts limits on the ability of Parliament or the legislatures to act if political constraints are inadequate in terms of protecting the public interest.
There may be times that political constraints would be enough to stop the government from doing something that was wrong and that would be fine, but there would be other instances where those political constraints would not be strong
enough, therefore it is necessary for the citizens to have recourse to the courts to protect their rights; is that correct?
Mr. Black: I think that is part of it. It seems to me there are two other ways in which entrenchment helps. One is that many times a law may be fair in most applications but a particular application of a law may take away a person’s rights. That instance will come to the attention of a court that has to consider the matter but will ot necessarily come to the attention of Parliament or the legislature. If it did come to their attention they would probably do something about it, but many times it will not, so a Chamber of Rights allows the court to deal with that problem rather than waiting perhaps for decades for Parliament to have time to deal with the problem.
Secondly, courts consider matters somewhat slower, sometimes, than Parliament, and while justice delayed is sometimes justice denied, sometimes it may have the advantage of allowing reconsideration of the matter in calmer times and we think-that is still another advantage in addition to the one you mentioned of an entrenched charter.
Mr. Beatty: That is a very interesting comment in the present context.
One of the observations I believe you made as well was that it is no more inconsistent with the concept of parliamentary supremacy to have an entrenched Charter of Rights than it is to have a written constitution under our federal system, that limitations are put upon the powers of Parliament because of the mere fact of having a written constitution on a federal system; is that correct?
Mr. Copp: Yes, that was the view that we were arguing for. It seems to us that if in a federal system there is a division of power, and necessarily there is, then you are requiring the courts to rule on the various barriers that are set up to the various assemblies with respect to certain things that they can do, and once you have the courts engaged in that sort of a process, that they are already engaged in the kind of process that would be involved in applying the Charter of Rights.
Mr. Beatty: That obviously raises a third question. You are aware of the fact that a number of the provinces of Canada have taken the federal government to court to seek a ruling as to the constitutionality of the government’s proposals. I will not attempt, as Senator Austin did, to ask you about the ethicacy of unilateralism in this instance but I want to raise a question related to process here.
In view of the fact that the matter is currently before the courts do you feel, in light of comments yu just made about the importance of the courts in allowing sober second consideration of things which are considered often in a very heated way by politicians, in view of the fact that you believe the courts can put legal constraints on politicians when perhaps the political constraints are inadequate, do you believe the courts should have the right to make a ruling on the legality and the constitutionality of what the government is doing before we write it into law?
I am not asking for a judgment as to whether it is legal, it is simply a question of process. Should the courts have the right to be heard as to whether or not this is legal before Parliament acts?
Mr. Copp: Well, of course we cannot speak as to whether the type of action that is being contemplated by the Parliament is constitutional.
Mr. Beatty: Nor was I asking you to do that.
Mr. Copp: We do not want to take a position on the political issues which are obviously quite debated in the Parliament right now.
However, of course, we do think that the courts have a role to play in ruling on the constitutionality of various measures taken by the government and this is presumably another instance of that.
Mr. Beatty: I am sorry, if I interpret that correctly, you are saying that the courts should be given the opportunity to rule before Parliament changes the law?
Mr. Copp: I believe they are taking the opportunity.
Mr. Black: I think our position is that our submissions are on the Charter of Rights and what should be in the Charter of Rights. We speak on behalf of an association which has considered that, which has not considered the process and we just do not have authority to speak on other matters.
Mr. Beatty: So the Civil Liberties Association, notwithstanding the fact that they feel very strongly about the value of entrenching provisions in the constitution so that the politicians cannot sweep away rights without recourse to the courts to protect the rights of the people of Canada, your Association takes no position on whether or not the courts should have the right to rule as to the legality of the constitutionality of the government’s actions here?
Mr. Black: It is an interesting point and perhaps something we should consider and we have not, I think, is the problem.
Mr. Copp: I was just going to add that it is not that we do not take the position, it is that we have not taken a position. We are not in a position to speak on matters that have not been decided by the Association.
Mr. Beatty: I hope that before this exercise is over we will have the benefit of your thoughts because, surely, you can see the parallel here between the issue of constitutionality in this instance and the protections there for citizens of Canada in the present constitution, and what you are arguing for in constitutionalizing rights for Canadians is to put them beyond the ability of Parliament to take away unilaterally so that I think your guidance on this issue would certainly be valuable.
Could I turn to another issue which is obviously of some concern and that is under non-discrimination rights. You are aware of Section 15 of the Charter, it says everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. And then Section 15(2) says that in the case of disadvantaged groups special programs could be put in place.
I would like to ask you whether or not your Association has looked at the effect of Section 15(1) as it related to, for example, the drinking age, the voting age, the age required for drivers licences and the like. Is there the possibility that this provision could have the undesired effect that I am sure neither you nor I would want, of striking down provisions which are on the books today, which Canadians feel are every bit justifiable but which do in fact discriminate on the basis of age?
Mr. Black: That is a problem that comes up in many places. We have the advantage here of experience in the United States, and I am sure the Canadian jurisprudence will be different, but I think we can assume that where the American courts have drawn limitations, the Canadian courts would not go further than the American courts have gone. They may not. go as far but they certainly would not go further.
The American courts have interpreted the right to equality so that it allows reasonable distinctions and disallows distinctions that are made for purposes of discrimination or that serve no rational purpose. Obviously the drinking age, requiring people to be a certain age to drive and so on, serves a legitimate purpose, There is no case in which those kinds of laws have been struck down in the United States and I am sure they would not be here.
Mr. Beatty: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Beatty.
May I ask Mr. Irwin to conclude with our witnesses. Mr. Irwin.
Mr. Irwin: Thank you, Mr. Chairman.
There are many, many things in your brief that I agree with and I will not bother with them because my time is limited. I will restrict my questioning to things that I only want further clarification on or perhaps disagree with.
At page 12 you suggest that we include in the non-discrimination clause former criminal convictions, that there be non-discrimination on the basis of former criminal conviction. I will give you an example.
Say that Mr. Mackasey and I were applying for a job and he had a PHD and I had not finished high school, and he had twenty years of experience and I had none, he had an IQ of 120 and I had an IQ of about 80, and yet he had a conviction for impaired driving, several convictions for sexual assaults, maybe a snatch and run conviction. Under what you are suggesting, all things being equal, if we apply to a school he would get the job as a teacher, if we applied as a taxi driver he would get the job as a taxi driver, and if we applied as a bank teller, he would get the job as a bank teller.
You are suggesting that this be enshrined in the constitution?
Mr. Black: No, that is not what we are suggesting. I am glad we did not deal with the laws of defamation here as well.
Again I am repeating myself a bit, I think. What it says is that you can make legitimate and reasonable distinctions on the grounds of criminal conviction and there would not be any question about that. On the other hand, if the law said you will be deprived for life of the right to vote because you were once convicted of jaywalkng, we would think that that would be an unreasonable distinction on the basis of criminal conviction.
We would of course think that serious criminal charges should be relevant to later employment. If they really relate to that employment. All we ask is that the section be broad enough so that if a law unreasonably made a distinction, Section 15 could be a remedy.
Mr. Irwin: What about political beliefs, should there be a distinction there?
Mr. Black: Again what we say is obviously there are some distinctions, with regard to who is sitting in government and who is not, and I guess this Committee is a place where there are some distinctions on that ground, but what we would say is that there should not be unreasonable distinction. A member of a political party, a responsible political party, for example, should not be denied the right to run for office simply on the grounds of their political membership. That is the kind of thing that we think the Charter should protect against, not of course all political distinctions.
Mr. Irwin: So you are qualifying these rights.
Mr. Black: I am trying to explain that the right to equality has built into it the qualification that it only protects against unreasonable or discriminatory distinctions. It allows reasonable distinctions that are enacted for valid governmental purposes, that is built into the definition of equality before the law and equal protection of the law as it has been understood in courts, especially in other jurisdictions, and as it would be applied here once that language were adopted.
So we are not in favour, obviously, of a law that said nobody can distinguish on any grounds and two year olds have to be able to drive cars in public.
Mr. Irwin: Now, on evidence, at page 8 you say that any illegally obtained evidence should not be used?
Mr. Black: We put forward a more broader and a narrower position on that. Professor Cobb suggested where the administration of justice is brought into disrepute by using tainted evidence to convict, where it is unclear which side is the guiltier, there should be an exclusion of evidence. At the very least we think that courts should have the discretion to exclude evidence where the courts think that the situation is so serious.
Mr. Irwin: This is the point. What we have now is any illegal evidence can be used; is that correct? We are not talking about confessions.
Mr. Black: Right, and Section 26 would preserve that.
Mr. Irwin: And then you have one point of view of leave it to the courts, and then you have this point of view, exclude it completely. Would you support the leaving it to the courts concept?
Mr. Black: Certainly, and we think that would be far superior to Section 26 as it now stands.
Mr. Irwin: One last question. You suggest at page 11 that Section 24 “preserves only those rights presently established bylaw”.
Now, it is my understanding that, and I will read it:
“The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the native peoples of Canada.”
Now, presently established by law means to me some type of adjudication. I take it you do not mean that?
Mr. Black: No, one of our concerns with regard to Section 24, perhaps I can illustrate when you compare the language of Section 24 with Section 22. Section 24 says the guarantee of rights and freedoms denies any rights that exist in Canada. When you look at a comparable provision with regard to language rights in Section 22, it says nothing derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter.
We would suggest that language along the lines of Section 22 and incorporated into Section 24 as well would be appropriate.
Mr. Irwin: There must be 40 native claims presently under negotiation and you are the first to suggest that maybe there is nothing there unless there has been some adjudication or settlement before patriation. You are not suggesting that, are you?
Mr. Black: We are not in a position to say what the courts would do. What we are concerned about is that every step should be taken to make sure beyond doubt if possible, that rights are not accidently taken away by this Charter from native people, not that it would happen for sure.
Mr. Irwin: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin.
I still have on my list at least four speakers and I understand that we have overspent the time that we wanted at the beginning to discuss with you. I noticed that we have our other witnesses with us tonight and they have been courteous enough to wait for at least a half an hour.
I still have the name of Mr. Hawkes and I think that, Mr. Hawkes. you will understand for a very short question and after that I will thank our guest.
Mr. Hawkes: I thank you, Mr. Chairman. I have sat on this Committee as an alternate being here for most of the sessions but I have not had the opportunity to ask a question of a civil liberties group and you are the third or fourth group with that persuasion and it may be our last group.
As I have looked at the briefs presented by groups that form together to protect our liberties I have gradually come to the perspective that, and if Mr. Mackasey will permit my what he calls colourful language from time to time. . .
Mr. Mackasey: I still have a chance to reply so go ahead, I am listening.
Mr. Hawkes: You are listening. Well, listen carefully. I reminds me of a play or movie called the Music Man, and inside that play was a character called the Flim Flam Man, and I think if I was to summarize at least the essence of your brief. . .
Mr. Mackasey: He was a Tory.
Mr. Hawkes: It fits very well in terms of the Flim Flam Man, that you would tell us that you, as natives of the province of British Columbia, have been exposed to a government advertisement campaign that says that we need to protect your rights. Out there, out front is the need to protect your rights, and then you are faced with a proposal, a set of words, to use the words of the honourable member who usually sits next to me, that when you examine the words of that proposal what it really does is entrench the rights of government, increases the ability of government to take individual rights away from people. That is the kind of summary comment about the proposal which we have before us, and I think it is that sense that disturbed many of us when we saw it for the first time and I would like comment on that but I would like to go one step beyond that because I do not think we have asked the Civil Liberties group about the provision in a democratic society, when we take something which is counter to our sort of common law and Parliamentary tradition and we entrench a Charter of Rights, we leave in place the current system of judicial appointment, and our system of judicial appointment essentially is characterized by the sense of privacy about it.
In other words, we are taking something, we are handling a new area of jurisprudence in a sense to this small group of people in terms of the Supreme Court of Canada, but we are not intending to change the method of institutional appointment.
In the United States judges are elected, or in terms of their Supreme Court there is considerable public examination of the background, the voting record, the qualities of the people that are appointed to the Supreme Court, but in Canada perhaps we are intending to hand this new area of jurisprudence over to a small group of people without some kind of institutional change.
I am wondering specifically if you could comment on the need for instructional change, if we moved to this different set of arrangements, whether we need to, if we really want to protect our rights and the interpretation of those rights, whether we need to give careful constitutional consideration to the system of appointing judges in this country, whether your advice would be in that direction?
Mr. Black: I think with respect to the charter and indeed with respect to rights in general that it is important to have the best possible procedure we can have to appoint judges.
We hope that that will receive serious consideration at some point, but we take no position at what stage in the long deliberations that should take. That seems to us a political matter outside our area of expertise.
I might just add that we hope of course that despite the tribulations with regard to the charter, like a musical comedy we will all live happily ever after at the end.
Mr. Hawkes: We would hope so, Thank you.
The Joint Chairman (Mr. Joyal): On my behalf and on behalf of all the honourable members of this Committee I would like to thank you very much especially for your very effective and very articulated contribution.
As was stated by one of the honourable members of this Committee tonight I am pretty convinced that when we will be arriving at the stage where we will have to consider amendments your brief will be of the most use to all of the members. Thank you very much.
Mr. Black: Thank you.
The Joint Chairman (Mr. Joyal): I would like to call now the Association of Metis and Non-Status Indians of Saskatchewan and invite them to take a place at the witnesses table.
Mr. Allmand: On a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Honourable Warren Allmand, on a point of order.
Mr. Allmand: These witnesses were called originally for 9:00 and it is now 9:37. Could you confirm that the witnesses will have the full time originally allotted to them and at what time you intend to more or less adjourn the meeting.
The Joint Chairman (Mr. Joyal): It is always our procedure that we stick to the time that witnesses were informed that they would have to discuss with honourable members; so when we start late as we did start at 8:15 tonight I had to consider that a full hour was 9:15, and of course I always pay attention to the list of speakers I have. When the time is over spent I try to consult with honourable members to see how much more time will be needed to complete the questioning and the discussion with our witnesses.
So I am quite sure that tonight we will go at least until 10:37 or 10:45 if I see that I still have names of honourable members who want to question, and that is why when I see that we have over spent the time that I request honourable members to stick to the five-minute rule. Sometimes as you know it is difficult for the Chair to interrupt honourable members and that is why I always request honourable members to look at the Chairman so I could indicate to them how much more time they have. It does avoid putting the onus on me to intervene during a question or during a comment put forward by honourable members, and I must tell you personally it is always awkward for me to do that.
Mr. Allmand: Thank you.
The Joint Chairman (Mr. Joyal): It is my pleasure tonight to welcome Mr. Jim Sinclair, the President of the Association of Metis and Non-Status Indians of Saskatchewan, Mr. Wayne McKenzie, Mr. Rob Milen, Mr. Jim Durocher and Mr. Frank Tomkins.
I would like first to apologize for the delay that we had in the opening of our discussion tonight and I am grateful that you have waited and are agreeable to start our discussion now. Mr. Sinclair.
Mr. Jim Sinclair (President, Association of Metis and Non-Status Indians of Saskatchewan): Mr. Chairman, first of
all I would like to thank you for inviting us to meet this Committee. We have a written brief that we sent in sometime ago. I do not want to read anything because I am not very good at reading and I would have difficulties. I think I would put half of you to sleep—or the other half of you to sleep, as it is right now.
So what I will try to do then is go through a little bit of what we feel is very important in these constitutional talks and constitutional meetings. I would like to give a brief history of our people as we see it, not as in the history books.
When the white man first came to this country he claims to have discovered it, but we were already here. He then sent over missionaries, who made friends with us, and taught us religion, and behind those missionaries came the soldiers with the guns and the land speculators. They said they would treat us fairly and deal with us justly and of course history has showed that the white man has not treated us fairly or justly.
The Indians of course then were colonized as we see it. Our land was taken away. We then, most of us in Western Canada where I speak from, which is probably most important to us, our people had the economy of the buffalo at that time. The government tried to make us believe that it was going to deal with our rights out there. We had delegations, people making positions to governments in Canada. They were refused and rejected.
They tried to make us believe that they formed the RCMP to come out to Western Canada to protect the rights of the native people but the RCMP were sent there not to protect the rights of the native people but to protect the railroad and the buildings of the railroad and the white settlers who were coming into Western Canada.
Again of course when they took over the way to get the Indian under control was to kill his economy, so they killed the buffalo, and as a result our people had to go on welfare. That is really where we are today, on a welfare system.
Our children were taken away from us. There was a family breakdown. They were put into boarding schools. They were taught the white man’s history, the white man’s culture and the white man’s language. We were to be assimilated, We were treated so-called equal.
The welfare system that has been with us since then has caused us many problems and the main reason why we have these problems is because we do not have a land base. Every revolution or every war that was ever fought in this world has been fought over land. Any people who has had anything at all have had to have land on which to build and on which to have an economic base. That has had to happen.
So what the government has done with us then, they have taken us, given us welfare programs, made welfare recipients out of us. They have put us in jails, at the end of the unemployment lines, poor housing conditions, lack of education, and that is what we have been forced to live with. That is what we have to face.
Now, our people are sic and tired of that. When you are talking about bringing back the constitution, we are interested
of course. We are interested. But I do not see any involvement of our people. I do not really see how we are going to be involved. We have been over the past number of years, left to deal with committees, secretariats, study groups, we have been studied to death. If we had the money that was spent on studies we would be well off today, on Indian people.
As a result, we have been sort of used. We have never been able to deal with aligned departments and really have any meaningful input into aligned departments in government, so we face difficulties through the economics, the very system that oppresses us.
What we are saying is that the government then of course also has the treaty Indians which they said they have given land to. They have the non-status and the Metis and the half-breeds, which is us. One of the things of course is the old divide and rule game which has caused the problems. You have come along and you have called some people Treaty, you have called them Indians. You take someone like myself, we are not an Indian. You have made laws that makes a new race through the Indian Act. Your laws can make a white man out of an Indian and an Indian out of a white man. Now tell me what kind of a law is that that you can fit into a system that you can make yourself someone you are not, and yet declare us not an Indian. These are the kind of things we face. You have come up with programs such as we call extensions of the welfare system. Those are the grants that you give us as organizations. Those are the grants that you give us, that government comes and says we are helping you people, but they are in the form of grants and they are extensions of welfare and they are piecemeal type of programs.
You have programs that are really racist against us. Affirmative action is one. Affirmative action is a program that is supposed to help native people. If we had the kind of training and the kind of control over the education that we need to properly train our people we would not need your affirmative action programs. We would be able to train and develop our own people for the jobs that are available. You would not have to go outside this country to bring l30,000 people in to take them to the jobs that you have waiting for them. You could have used the resources that are already here, and that is us. We would like that opportunity to work.
You have wasted your dollars up to date. You have spent your dollars in keeping us in the jails and building the jails bigger to accommodate our people, which consists of maybe up to 80 per cent. Ninety per cent of us are unemployed. Eighty per cent of us are on welfare. Sixty per cent of us are affected by alcohol and those sixty per cent affect the other people who are sober and trying to make a go of it. We have family breakdowns. We have suicides, the highest suicide rate probably right now in the world. We do not have any future. We are kicked out of Northern Saskatchewan; we are kicked out of the urban centres. Where is it all going to end?
This is why we want to talk about the constitution, get involved in these talks. We have no place to go, really. Our battle has to be here. Every time someone comes in from another country he brings some of his wealth with him or someone from his home country sends him money or he gets a
new start from this country. Our people have nowhere to go and yet when someone tries to go to the United Nations to ask for help he is immediately shot down by the government here saying why should he have to leave this country, why should he have to go abroad to try and to find money to develop his homeland and his people.
Those are the kinds of conditions that we face. Those are the kinds of things we are going to have to deal with during these constitutional talks. We are going to have to deal in economics. I know you people, I have heard it so much that I do not know how to approach the word aboriginal rights. I do not know how to talk about self determination because immediately you misconstrue it and you say it is something else. You say that we want to take over the government. We do not. We just want a land base which we can develop and on which we can form part of our own ideas on how that should be controlled so that we can use the income from that land base to develop our own institutions for language, cultural, training centers, so that we can pay our own way, so that people do not have to give us handouts. Those are the kind of things we are going to have to talk about.
I want to just take a look at the future a little bit and what we are going to have to do. Like someone says, you put the problems on the table, what about the solutions. The solution of course is a settlement, a fair and just settlement.
The other thing that I am going to have to say at this meeting which I know I will be shot down by some of the other Indian Leadership, but we have to talk about extinguishment of aboriginal rights because if you make a deal and you say, look, we are going to make a deal and we are going to settle this and I am giving up this for that, then we are going to have to stick by that. We cannot go back home and come back and say we sold you the land and we sold our rights but next week we want to send another delegation back to claim for some more land. No, we are going to have to make a settlement, but we are going to have to have political structured native organizations so that we do not sell the land for our own gain, so that land remains there for our people and for future generations, and it is protected.
Our organizaton has done its homework. We have one of the only democratic organizations in Canada. Every member has the right to vote so we are trying to set up a structure that we can make sure that there is a democracy back there that will control people like us who come to these meetings and speak to you and say to you people look, when that land is given to us it is ours. I cannot sell it, he cannot sell it, the next fellow cannot sell it. It is not for sale. What we get off of the land will be for our own people. That is what we are looking at for the future. That is the kind of deal I want to sit down and work out with you people. I want to talk to you about that because that is important to us.
I just want to go on for a few more minutes and then maybe we should get into the questions. We talked a bit about the happenings in Canada today and I am disappointed because the divisions that have been brought upon us have been so bad
that people have looked down on our people because of the division. We have had, like I said, Indian Affairs. We have had the government handing out to different organizations, giving money to this organization to fight that organization, the old divide and rule tactic. Then when I come to meet the government or the department they will say I cannot do this for you because this organization says that. The person that handled that the finest and showed me the best example of divide and rule was Mr. Trudeau at the constitutional talks. He had each province telling the problems and then sitting around saying, well, you guys cannot make a decision, so I am going to have to decide for you, and it was accepted. You can imagine the troubles that we face as an organization, meeting with a Minister for a program. So those are the kind of things, again. we are going to have to deal with. We want to deal with those kind of things. How are we going to settle it? How are we going to pull our people together; and we must do that. We have to do that as an organization.
Right now I call myself the President of the Metis Society which is an organization, but I am a spokesman for the Metis Nation. I do not pretend to speak for every Metis and non-status Indian in Canada. No one can. Our people throughout Canada are going to have to make their own decisions and sit down together and decide what is best for them but we are going to have to support them. When I speak of nation I am not talking really of boundaries, I am talking of nation as a people and how we develop those people. Those are the kinds of things I am looking at.
I just wanted to close off by saying in the past little while we have heard of the rise of the Ku Klux Klan and it has got a lot of people up in arms saying we have got to do something about it, we have got to fight the Klan, we have got to ban the Klan because they are going to bring racisim and white supremacy and we are going to have problems with them. Our people have had a couple of confrontations already with them in Western Canada. But the Klan is rising not because the Klan says, let us get together, they are rising because the government has failed to deal with the problems of minority groups. They have failed to come to grips with the kind of problems that my people face and that other minorities face so as a result the Klan rises up. If people were really equal in terms of economics, I do not care who is against me. It does not make any difference to me as long as I have the equal opportunity in economics, a decent home, a decent job, a place for my children to go to school. So let us deal with the problem, let us not shove it off and blame the Klan and have every bleeding heart get up and fight the so-called racial tactics and turn around and then support every law that provides the kind of racisim that keeps us down.
When I hear about the Klan I say to myself, and I say to people around me, they do not have to put on sheets to be
Klansmen. The RCMP, the judges on the benches, the politicians, the social workers, they are there, and we meet them every day, and I think that is one of the problems we have got to come to grips with. We have to face the fact that there is racisim in Canada and we have to deal with it and once we face that fact then we can deal with the problem because we will know the problem.
Canada has been very unique in its treatment of native people. If I was to go outside of Canada today and go and speak at a national poor peoples conference they would laugh me out of the room because I have a colour television. because I drive a car. They would say you are not poor. But Canada has dealt with its native people in such a way that we have not had the right or the power to make any decisions regarding ourselves. We have not had that right. You have killed the spirit of our people but you have left the body alive.
As an old Indian told me a long time ago, and I still go with that same feeling, I would rather die on my feet than live on my knees. I think that is the feeling of a lot of us right now back home in Saskatchewan. We are faced with so much frustration, we have gone as far as we can go with government handouts and government programs. It is time that we sat down and dealt with the problem of solving the land situation and letting us develop that land. Thee is $7 billion in that Alberta heritage fund. There is money there for everyone right now for a fair and just settlement and for equal treatment of all minority groups, not only native people.
The potash and uranium that is coming out of Saskatchewan right now can do the same thing yet there is a fight between the federal and provincial government arguing over the constitutional rights of the federal and provincial governments who has to do what. The province kicks us back to the feds, the feds kick us back to the province. We can never get them in the same room because then they would have to rat on each other, and that is the problem we face.
Okay, seeing I woke you people up a little bit now maybe my friend could just send a message back home to some of the people.
Mr. Jim Durocher (Provincial Treasurer, Association of Metis and Non-Status Indians of Saskatchewan): (Speaks in Cree language)
Mr. Frank Tomkins (Provincial Secretary, Association of Metis and Non-Status Indians of Saskatchewan): (Speaks in Cree language).
The Joint Chairman (Mr. Joyal): Thank you, Mr. Sinclair. I have to apologize for the fact that I have not, unlike many members around this table, understood what your fellow citizens had to say to us in their language. But I understand generally that they have expressed the same kind of concerns which have been put forward to us in their own native language.
Thank you very much.
I would like to recognize now the honourable Jake Epp, followed by Mr. Anguish.
Mr. Epp: Thank you, Mr. Joint Chairman.
I would like to thank the Association of Metis and Non-Status Indians of Saskatchewan, especially their President, Mr. Sinclair for expressing the view of his people to us today.
As you have shown before, Mr. Sinclair, your ability to project not only your own feeling, but also those of the people you represent, has touched all of us. I know it has touched me.
But I would like to discuss with you tonight the question of the land base and maybe to get some clarification on terms that the native people use so often as self determination clauses.
First of all. I would like to start with the land base. You are non-status people, so-called. Can you address that? Very quickly, can you tell the Committee while you are non-status.
Mr. Sinclair: Well, as I have said before, it is the old divide and rule: you be nonstatus and you be status. No one can read, and they bring up treaties and you are going to sign and you do not know what you are signing. Even today I am very careful about signing anything without talking to a lawyer.
When we talk about a land base, we are saying that we are 10 per cent of the population of Saskatchewan and we should have 10 per cent of the land.
Mr. Epp: Mr. Sinclair, let us get one thing clear, To what extent do you attribute that entitlement as it is so commonly called in Saskatchewan on the Prairies? The entitlement going back to the treaties, and in some cases, in your case, not having a treaty: to what extent is the question of fulfilment of entitlement, apart from extinguishment, the question of entitlement dating back to participation of the Indian people and the Metis people in the Riel rebellion of 1884, 1885?
Mr. Sinclair: First of all, I would not really call it a rebellion, but a war. Our people were fighting for their land. It was not a rebellion.
Mr. Epp: Excuse me, if I interrupt you. But do you feel that the problem of entitlement still goes back to that participation?
Mr. Sinclair: Definitely.
There were two world wars where you people just about wiped out Europe right off the face and Japan. You left those people their lands and their rights. You had a war with us 100 years ago, and there is no reason why you cannot still sit down and negotiate human rights and land rights from which our people could build.
Mr. Epp: Do you feel that there are still Indian people today—of course I go the Red Pheasant incident—that people
such as that are still living on other reserves and have not had their entitlement as a penalty by the Canadian government perpetrated over these years?
Mr. Sinclair: I would not say it was a penalty.
But I say that the fact is that I have a right—there is no one in this room who can tell me that I am not an Indian. There is no one in this room who would believe anything else, you know.
I am saying I did not sign any treaties; I did not give away any land; I think I am wise that I did not, because maybe now I can sit down and make a deal.
Mr. Epp: You mentioned the question of extinguishment, and going back a little bit that was a question in negotiation where those of us who thought there should be completion of entitlement—and I say to you quite bluntly there are lots of Canadians who do not see the entitlement factor at all.
I personally feel there was an entitlement which had to be fulfilled on the Prairies.
Part of that entitlement, to fulfill that entitlement, had to be the question of extinguishment.
To what extent do you feel that the ordinary native, not the native leadership, but the ordinary native would be willing to complete the entitlement deal and, with it give us extinguishment?
I know the leadership does not want it that way.
Mr. Sinclair: As nonstatus, we would be prepared to sit down and extinguish entitlement when we make a fair and just deal.
Mr. Epp: Through negotiation?
Mr. Sinclair: We are prepared to do that.
Mr. Epp: Do you feel that the Charter. the process, should be proceeded with before that deal is complete?
Mr. Sinclair: We feel that the reason why we want amendments in the Charter at this time is to make sure we are involved. That is number one.
It is very simple, to make sure that we are in the door. Once we are in the door and we bring the thing home, then we are prepared to sit down and negotiate, because we know we are going to be involved.
This way, if you leave it as it is, you are going to have the same old question: who is a native? We have fought for the last I00 years with that same old story.
I am saying that we are prepared to deal with it.
Mr. Epp: I appreciate that, Mr. Sinclair, because I know in the past—and I take your word as being just that—that you are willing to deal with it and to look at those two components.
That takes me to another question. There are a number that I have, but I do not have the time. I want to refer to page 7 of your brief. There is a paragraph there which was more startling than even your comments this evening, Mr. Sinclair.
That paragraph can be interpreted in a number of ways. But I would like you to interpret it for me and for the benefit of members of this Committee, as to what degree do you feel the frustration of not having completed the deal, is resident in your people, and if that frustration is not exorcised, is not ended, what do you see as the possible actions that might be taken?
Mr. Sinclair: What do we see as what?
Mr. Epp: The possible actions that might be taken if the grant system, the welfare, the alcoholisim, the suicide—all that continues; in other words, just finally a destruction of a people. Before that happens, what action do you see your people taking?
Mr. Sinclair: Well I hope we will get up and fight, regardless of the majority or the situation. I think any person in such situations would have to protect his home or what he feels is his right. That is done all over the world and we are not different.
We are perfectly prepared to fight in every way we can. That is the reason why our organization has not gone to the United Nations or to Great Britain at this time, because we feel the battle is here with the Canadian politicians. We are prepared to battle at home. But if we got a flat denial, and the doors were closing on us, then we are prepared to take our case to the United Nations, to Great Britain. to other places outside of Canada and the world court, wherever we could get help.
But I believe we should fight it out here at home first, because this is where the problem is and we are the people who can deal with it.
Mr. Epp: Thank you, Mr. Chairman.
In terms of the land base, I know that a number of your people have a land base which you have acquired individually.
You have title to it individually like other citizens. When you talk about a land base and that land is to be used collectively by members of your people, do you see that land base used for economic reasons primarily or do you see it as an area where your people generally would also live?
In other words, are you looking at a reserve system?
Mr. Sinclair: I do not want to use the expression “reserve system”. We are looking at both. where we can possibly live and where we can develop an economic base and have a home.
As I have said, we are not welcome in the urban centers. I have newspaper articles to prove it. They want to kick us out of the North; we have no place else to go and we have to stay and fight.
But I also have a feeling, and I want to mention this very briefly that if we do not get a settlement within the next five years, all the land will be occupied and tied up to the point
where people will not want to give in. That is going to cause deep problems.
Again, I want to say that we feel there should be no further development, major development. until there is a settlement of our rights in Canada.
Mr. Epp: is this added pressure coming because of development in the Northern parts of the provinces now?
Mr. Sinclair: Definitely, definitely. The fact that there is development taking place and we are not getting any benefits from the development. The benefits are coming back in welfare dollars, but not in training and jobs. We do not want the welfare dollars.
The depletion of the game comes also as part of the development, and with no jobs—and we have to live off the game—something which we have to do outside the law, because legally you tell us that we cannot hunt, which puts us in a very precarious position.
We are living in a way in which we have to live off the land, because we have not got jobs; yet, we cannot take our own game which is ours, because the government says there is a law which says you cannot do that.
So you are looking at people who are having troubled times.
Mr. Epp: Have you had any land transferred to you through entitlement, land, for example that was used by PFRA?
Mr. Sinclair: No; there were the so-called Metis farms in Saskatchewan which were set aside through orders in council, but the land was never transferred to our people when we became organized.
Mr. Epp: It has not yet been transferred?
Mr. Sinclair: Not yet.
Mr. Epp: Thank you, Mr. Joint Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp.
Mr. Anguish followed by Mr. Warren Allmand.
Mr. Anguish: Thank you, Mr. Joint Chairman. (Speaking in Cree). It has become evident to me, that the speaking of the two languages, the Cree and the English languages, which has taken place in this Committee, shows that the Metis people have been bounced around between one government and another level of government, and from one culture to another.
If you were to ask the treaty Indians whether this is a member of his reserve, he will say no; if you ask a member of the white community if this is a member of the white community, certainly the white community will say no as well.
That leads me into my next question. How do you in future propose to go about proving or identifying who the Métis people are?
Mr. Sinclair: We will do that by setting up a process by which we will identify our own people. We are working on that now, and have been doing research of our own. We are doing it ourselves, and we will present that when the time is right.
Mr. Anguish: Do you think it is possible to find and identify who the Metis people are?
Mr. Sinclair: The organization will have to do it, because no one else can.
Mr. Anguish: How do you propose to go about proving what your aboriginal rights are in the future?
Mr. Sinclair: Well, I think we need little proof that we have aboriginal rights.
Our ancestors were here for thousands of years. We feel that the government has to deal with that question, A problem we face is that politicians usually want to get elected in their own area, so that it is an unpopular cause, and it is something which causes difficulties.
That is why when we talk to this Committee and discuss the constitution, we want to make sure that it is not construed as a politicians’ constitution. It is a peoples constitution; and we are part of that involvement as people.
Mr. Anguish: I would like to address my next question to Mr. McKenzie in terms of something Mr. Sinclair mentioned in his opening remarks, namely the discrimination against Indian people, against Métis people.
Is there evidence that your organization has to show that you are being discriminated against?
Mr. McKenzie: Yes. Just last week we picked up this clipping from the Leader Post in Regina regarding people’s attitude towards native people in the city of Regina, taking over a certain building to put up a friendship center; it was rejected by the citizens.
There is another document that we received from the University of Regina, which identifies the racist attitude of non-Indian people of this country, as to what they think of native people and the drag-down system which has been portrayed as to what we should act like put on the walls of the University.
Instead of reading those documents, we will leave them with you tonight. But that was just last weeks’ literature, and we could have brought a lot of literature with us.
You have all kinds of examples across Western Canada: they are called jails.
Mr. Anguish: Would you like, Mr. McKenzie to read some of those now, or would you prefer to distribute these among members of the Committee?
Mr. McKenzie: I think I would rather distribute it to members of the Committee, rather than read it; because we think it is just garbage to read it, and we do not want to take up the time of anybody here with the type of garbage which is being promoted by non-Indian people who do not understand, especially in our cities and in the province of Saskatchewan.
Mr. Anguish: There is something else I would like to know from your delegation. I have always thought that affirmative action might help minority groups. Mr. Sinclair, you have indicated in your remarks, that affirmative action has not
helped you, and that possibly affirmative action programs would not be necessary. Do you want to elaborate on that a bit more?
Mr. Sinclair: Affirmative action was set up to take native people and other handicapped people in and train them and give them jobs.
My own feeling about that is if we had the opportunities and if the educational system was in tune with our people and culture, if we had control over the training programs, and knew about the availability of jobs and were able to identify them, then we could train our own people for those jobs.
What we would be prepared to do then is that we would apply for a job with an equal amount of education and training that another person has, and we would apply on that basis.
But then, if we found that a majority of our people were being discriminated against because of their colour, then we would certainly press government to take some action.
But until that time, I do not want to see Indians get a job because he is an Indian. That would be putting us in a bad light, because you put onto white society again the fact that they have got to hire Indian people and what it does is that rather than promote our people, it promotes more racism against our people because of the forced hiring.
Mr. McKenzie: Could I add something to that. Regarding affirmative action, today the attitude is that what we will do is we will train secretaries through affirmative action programs or other native people in lower jobs within government or crown corporations or private, but years ago during the war, our fathers and forefathers joined the war not because they were brave but because it meant a job and they were able to fly planes in a foreign country at four o’clock in the morning two weeks later but today they put together a large affirmative action program which takes years to train a secretary. I think the attitude is not there that the native people can do the job because other people are applying for it, they are not the Indian people of this country, and affirmative action does not mean that we are supporting or trying to help native people but one that is stealing our leaders from our communities and putting them into the non-Indian population or non-Indian jobs in our communities where we cannot develop our own people. So therefore our people must assimilate and they cannot integrate, they cannot learn the jobs that are needed back home and the skills that are needed so that we can learn from the non-Indian community, so that we can go back our own communities and not have to leave our communities forever in order to be able to be employed.
And that is the way it is today in our country, especially in Northern Saskatchewan.
Mr. Sinclair: Another example of that is what they call the fine options program back home in Saskatchewan where you have to go to jail to get a job.
Mr. McKenzie: Then after you finish paying off your fine you start all over again.
Mr. Anguish: Do you mind if I address a question to your legal counsel as well?
Legally, Mr. Milen, what do you see the Metis people or that association of Metis and nonstatus Indians of Saskatchewan, legally what are they asking for?
Mr. Milen: I think it is very simple, Mr, Anguish. I think we are saying that we are looking for a Canada first constitution which will take us into the 21st century, a constitution for tomorrows children, not yesterdays men. This is our 1776.
We are concerned that we see differences in our country, split along regional lines, east versus west; along linguistic lines, French versus English; and we do not want to add to this a split along racial lines, natives versus non natives. We perceive the constitutional process to be a constructive process, a healing process, a communal process in which we stress our similarities.
We have similarities with the logger in B.C., the oil rig worker in Alberta, the trapper in Saskatchewan and the farmer in Manitoba, the merchant in Montreal, the businessman in Ontario and the fisherman on the east coast. We want the constitution to stress our similarities, to take care of our physical and social need, to take care to provide basis for which our country can deal with the problems of housing and food and so on.
However, in so far as the Metis and nonstatus Indians of Saskatchewan believe that they have unfulfilled aboriginal or land rights, we want that recognized, we want that flagged under Section 24 of the constitution in order to permit the association to go forward and sit down through a process of negotiation and agreement with the federal government.
Then secondly we would like to see perhaps, if possible, a couple of other things, that the amending procedure specified that if there is going to be amendments to Indian, Inuit, Metis or nonstatus Indian rights, that that perhaps includes the participation of the native peoples, and the constitutional conferences perhaps in some way provide for their participation as well.
Mr. Anguish: I have one further question I would like to ask and my time is rapidly running out and so I would like to address it to either Mr. Sinclair or to another member of the panel, but what do you visualize, if your concerns are met, what do you visualize the Metis nation as being?
Mr. Sinclair: Well, all right, the Metis nation of course is people and what we are saying again is that we are not looking at a separate system or separate government because the referendum in Quebec has shown there is not that desire. What we are saying is that we feel the Metis nation could extend from Northwestern Ontario into Northerneastern British Columbia and the people that we talked to are prepared to sit down and negotiate pieces of land here and there, that we will say: look, this is ours and we will develop it the way we want to. We will meet on the basis of talking to each other, not
on the basis that we want control or to form our own government, but we do have to have control over our own land and some economics of our own because that is the only way we are going to carry our fair share of the load.
That is why I said at the beginning, and I did not want to take any shots at any other native organizations, that is why I said I am president of an organization at this time which is promoting, getting us ready for the time when we get some land. I am spokesman for the Metis nation, there are several spokesmen for the Metis nation.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Anguish. I would like to call now on the honourable Warren Allmand.
Miss Campbell: On a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Miss Campbell on a point of order.
Miss Campbell: I wonder if we could not have the two documents, the news item and the poster, circulated while they are still here in case we would like to question them.
The Joint Chairman (Mr. Joyal): Certainly, I will make sure that Mr. McKenzie provides those documents to our services so that the honourable members might have a copy.
The honourable Warren Allmand.
Mr. Allmand: Well, Mr. Chairman, through you to Jim Sinclair and the other members of the delegation, Mr. Sinclair, you have spoken very passionately about the need for a land base to develop your economy and the need to have the freedom to run your own affairs on that land and with your people so that you can begin to do the things that you wish to do for yourselves.
If I understand you correctly, and I want to make this clear, you believe that it would help if we changed Section 24 of the constitutional proposals, change them in such a way that we would recognize right in the constitutional proposal, recognize your right to a land base, your right to run things yourselves on those lands, your right to organize your own people and have, with respect to those lands, your own, I suppose you can call it government, but your organization, government, whatever you want to call it? Am I correct in saying that you would like Section 24 amended to entrench those rights right in the constitution now in very simple terms?
Mr. Sinclair: Right. we would like to see them in the—well, right now what we have got for the constitution is to get the foot in the door, but we are prepared, when the constitution comes back, a further deal on entrenching those rights, but what we are looking at now is involvement, to make sure that we are involved and then we will take the battle forward, and I feel that the battle really is not in a sense with this Committee because we are missing the bigger guys up there, if you want to call them that, or bigger guy, but the thing we want to do is bring the constitution home so that we can deal with it.
I want to say this to the Committee, and I want to expand on this a little bit, that people like yourself, Mr. Allmand, who have put up a fight for native people and got burned because
of it, when you were Minister of Indian Affairs that happened, if you had put up a fight for the nonstatus Indians as you did for the treaty Indians you would have had us here on Parliament Hill marching on those steps if you had got put out for fighting our cause, and I want to say that, but again that is what has caused a lot of people not to take up our fight because when they stuck out their necks they get burned, and I do not believe any man should stick out his neck in isolation. There has to be a group of people get together and deal with this problem and not make it a one man situation.
Mr. Allmand: Some people have said that we cannot put the term aboriginal rights in the constitution now because it is not well defined, and if it is not well defined, putting it in just like that, let us say confirm your aboriginal rights, your land rights, to put it in simple terms like that might go against you in the future, but there are many other people that say: look, just put it in like that and you will define it in the future, it will be defined if you have to go to court to do it or if you have to negotiate to do it, but you would like it in just very simple terms right now?
Mr. Sinclair: Yes. What I am afraid of is if we get into anything too big, changing paragraphs or changing too much of the constitution now, we are not going to get anything in the constitution. What I am saying is that what I want to specify at this time is that we have rights, get those recognized; we are saying Metis, Inuit, Indians and others, we are making sure of that.
When we bring the constitution home then we know we have our place at the table, or whenever we get the agenda, I suppose, and we are going to have to fight that one out, too, when the constitution comes back.
Mr. Milen: Mr. Allmand, we believe that by putting the word “aboriginal” there it sufficiently opens the door for us to go and do our homework, to prove to the government of Canada, or if necessary to the courts, what rights we have. We feel that would sufficiently open the door for the Indian, Inuit, Metis or nonstatus peoples, whatever, to then convince the government to go sit down with their people community by community, provide all the historical research.
We ask you, we believe, a very simple thing, by putting the word “aboriginal” there. Then we have got to do our homework. It is not good enough to put the word “aboriginal” in there, then we have got to go back and it may take years to get all that evidence, we are trying to get that evidence now, but then our homework really begins because we are prepared to take our case to the Canadian government, the Canadian people, or failing that, to the courts.
Mr. Allmand: In Section 52 of the proposals it states that the constitution of Canada includes the Canada act, but in (b) the acts and orders referred to in Schedule 1, and in Schedule I there is a long list of constitutional acts but it does not include the Order-in-Council of 1870 which transferred the
Northwest Territories and the Rupert’s Land to Canada, and it is very interesting that in that transfer, you have it in your brief, it says any claims of Indians to compensation for lands required for the purposes of settlement shall be disposed of by the Canadian government, et cetera, et cetera.
In other words when the British government transferred those lands to Canada it said it had an obligation to settle the claims of the Indian people, and also in the joint. address to Her Majesty regarding the admission of Rupert’s Land it says that upon the transference of the Territories in question to the Canadian government, the claims of the Indian tribes for compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aboriginals.
Well now, those are pretty clear statements with respect to the obligation of the Canadian government to settle those claims and from what I understand from your brief you would like the Order-in-Council of 1870 included in that Schedule which becomes part of the Canadian constitution, and I know that you also want the Royal Proclamation of 1763 which makes similar obligations on the Canadian government with respect to the aboriginal people in the East of Canada.
Would you comment on that?
Mr. Milen: We have, I guess, a couple of concerns. One of the concerns I guess is that we want whatever rights spelled out in the Charter. That is part of it. Secondly, we want to know what in fact is the constitution of Canada? Are there going to be other sources of constitutional law? Is the constitution to be strictly those things which are in Section 1?
We feel there are more things that should be included in Section I and should be appended and it should be Order in Council 9 to which you referred. the Royal Proclamation, and it is for those or similar reasons that the treaty Indians want some things spelled out with some specification that they want the treaties there. We want that put in there, we want that specified, we want that made clear, that that is a significant part of our Canadian constitutional law and we want that put in the constitution.
Mr. Allmand: Well, Mr. Chairman, Mr. Sinclair has spoken so passionately and well I have no further questions to ask him. and I know it is getting late and I will leave time for other members.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Allmand. I would like now to call on Miss Coline Campbell.
Miss Campbell: Nothing, Mr. Chairman.
The Joint Chairman (Mr. Joyal): So then the honourable Bryce Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman.
Mr. Sinclair, I, too, was moved by your eloquence. I do not have the basic knowledge that Mr. Epp or Mr. Allmand has in their close relationship to the problem because of their minis-
terial responsibilities and I must say, too, just very briefly in case I do not get a chance, that these papers that were circulated reflect sick people. The Leader Post quotes the reaction of local residents. I must say when I was Minister of Labour I have seen the same thing, the same phenomenon against nothing more than a senior citizens, home going into an exclusive area of the city, or that type of reaction against the church. it is sad but it is not limited to the Metis people.
The other document which you were kind enough not to read really reflects the mind of a pretty warped, sick person, and I have got to say again it is hard to believe but I received many letters, not quite as vile as this, but very close, in fact one a week ago, because of my quite self-evident and quite open support for the French speaking Quebecers with whom I grew up and made me feel so very welcome to share their culture, their language, their customs and their traditions, and their songs, if you like, which reflects the contribution of my culture, the Irish, to Quebec as well. So we share that in common, we have both been on the receiving end of pretty sad missiles.
What bothers me just a little, Mr. Sinclair, and let me just say that I have been listening over the last few weeks, listening because it has been an education to me, this whole Committee, listening to the views expressed by groups as important as your own that really make up our history, that there are reallay two sets of rights and the constitution as proposed, the Bill of Rights, docs enshrine a rather abbreviated list of rights, but nevertheless important rights, rights that will apply to you just as well as to me because you, too, are Canadian and I think this is a very important step forward.
However, I would like to think there is another set of rights which certain groups in the country are entitled to. Call them aboriginal rights, call them what you want, but they are a special set of rights which are equally important and must be resolved sooner or later. The question that I have not come to grips with, and you must forgive me for that because I want what is best for my fellow Canadians, which is what you are, whether enshrining them in the constitution at this moment would not work against a particular group in the longer haul. I think, and I do not want to get into a discussion about the Prime Minister’s letter, but I think he, too, had that same concern and one of the groups that were here last week, and I must be forgiven for forgetting which group, expressed the same concern, that they were a little concerned over enshrining something in the constitution which may unintentionally lead to courts defining the rights in a much narrower, less beneficial way than negotiations.
Mr. Milen: May I answer that? From the legal point of view we believe that part of the reason we have the problem now is that the BNA Act of 1867 does not specify with clarity who the “Indians” and “lands reserved for Indians” are within the meaning of Section 91(24), and we feel that if it is specified
that there are certain rights which exist, aboriginal or land rights, certain collective rights that exist for the Indian, Inuit, Metis and nonstatus people, that these people could get on, get down to the business of resolving and putting forward what those claims are, and we feel as an organization for the last 113 years perhaps the biggest problem we have had is because there has not been anything clearly recognized in the existing BNA Act of I867, and that is why we ask for some fairly general words, and an uncertainty cannot be avoided, but we feel had there been a clear Section 91(24) in the present British North America Act a long time ago we would not be in the problem we are today and we feel very strongly that if these rights are flagged, and if the people to whom they apply are flagged, we will not get into the kind of problems that you suggest might happen and we feel very strongly about that, sir.
Mr. Mackasey: I accept your views with respect and I will not pursue the matter other than to say that you have made a better case to me than I have heard so far as to the need to enshrine something at this stage reflecting some general responsibilities in aboriginal rights.
Mr. Milen: That is all we ask, just that there be something clear that exists now under Section 91(24) of the BNA Act and something clearer than exists under the present Section 24 of the Charter.
Mr. Mackasey: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey. Mr. Nystrom, followed by Senator Lucier.
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to welcome the group of fellow Saskatchewanites here this evening as well and perhaps ask the legal counsel, Mr. Milen, a question.
He says he wants the rights of the native people recognized in the constitution. I wonder if you could elaborate, Mr. Milen, a bit more about what you mean by that. How do you want those rights recognized? Can you offer us a bit more precise wording of what would be useful for your organization?
Mr. Milen: May I direct you, sir, to page 3 of our brief where we just simply say that the wording that should be used, the present phrase, native peoples of Canada under present Section 24, be broadened and it be broadened to read instead of the native peoples of Canada the Indian, Inuit Metis and other native peoples of Canada, We feel that that wording is sufficiently broad to then permit our organization to put forward who are those Metis or other native peoples. We feel that that wording is sufficiently broad that the problem under the existing Section 91(24) of the BNA Act 1867 is that it refers to Indians and lands reserved for Indians. The present Section 24 of the Charter is most unhelpeful because of using the word Indians we go to the word natives and we feel that the categories must be broadened, it must be expanded.
Mr. Nystrom: If this were enshrined in the constitution, how long would the organization take in your mind to define what is Metis, what is nonstatus?
Mr. Milen: Perhaps I would ask Mr. Sinclair or Mr. McKenzie to answer that, Mr. Nystrom.
Mr. Sinclair: That is going to take us—the federal government is going to give us an answer in terms of whether we feel we have any rights or not next February. We have done a claims research and presented it to the federal government and in my last meeting with Jean Chrétien when we asked him for a Royal Commission he told us to go back to the province and deal with the province. I had an argument with him over who is responsible. I said, you are going to make me deal with the province in terms of whether we have land rights or not, and yet you are going to make a decision on this next February, make that decision as to whether we have land rights or not. So I said what you are doing is passing the buck, and I think again we are going to have to sit down and we are going to have to work on a time frame, We are ready to move within two years.
Mr. Nystrom: I wonder if I could again ask the legal counsel a question. I think you understand, Mr. Milen, what the amending formula is here, that to get an amendment through our constitution once this becomes law we need the approval of the federal government, the province of Quebec, the province of Ontario, two Western provinces and two Atlantic provinces, and I think I agree and concur with many of the things that Mr. Sinclair has said tonight about the attitude of many of the white governments towards their native people, and it seems to me there are many road blocks here in terms of getting constitutional amendments accepted even if you are recognized in a constitution.
Have you thought about amending the amending formula or suggesting to this Committee some changes in the amending formula where there could be direct involvement of native people in the amending formula with the federal governemnt. or direct involvement with the native people in the provincial governement involved.
Mr. Milen: I concede, Mr. Nystrom, that our thinking on that particular point is not very well thought out. We have directed our energies to requesting before this Committee the amendment to Section 24. We are very, very frightened that when the constitution comes home that in trying to skate between the provinces and the federal government it is a little like getting caught up between the dance of the elephants, and we have not in fact directed our particular energies to looking at what would be a satisfactory amending formula in terms of dealing with Indian, Inuit, Metis and nonstatus people but we say two things. We believe corrective measures should be taken now within Section 24 of the Charter but certainly to see that those rights are never taken away unilaterally by federal and provincial governments, that perhaps something could be put in the amending formula that no amendments be made to affect the status of the Indian, Inuit, Metis or nonstatus people without their consent.
Other than that we have not followed the process logically further and we have not thought it out further. We have been frankly caught a little bit for time, and I am sorry that our homework has not permitted us to be more specific and more helpful to you.
Mr. Nystrom: Do you have any more thoughts on what the aboriginal rights may be. Mr. Sinclair mentioned land. You make up roughly 10 per cent of our provinces and you share roughly 10 per cent of the land of the province. Is there more to aboriginal rights than land. Are you looking at other things in new treaties or new pacts, or new compacts that could be signed between the Metis people and the government of Canada.
Mr. Sinclair: That has all to be worked out. That is part of the items for the agenda when you bring the constitution home. i think that immediately our people should have the right to hunt and fish on their own land; that should be allowed now, not something that should wait for the constitution to come home. I think that is important. I think development should stop even though it is going to be hard to stop it simply because the land will all be taken up in the next few years and we will have nothing left. Those are our feelings in terms of . . .
Mr. Milen: Let me add further to this, sir. One of the reasons that we have found it very difficult to lay out with particularity the nature of our rights within our new Section 24 is that frankly that we have not completed all our homework in that regard. Some of the process is under way, some of it is much further, but we have been as an association of the Metis and Non-Status people, for the last 113 years trying to get the recognition that those people have got some rights, and not until there is some recognition perhaps built into the constitution as we suggest then we can get onto the business of saying what is the nature of our aboriginal rights, what is the scope and what are we asking. We have been for altogether too long directing all our energies to the fact that we believe there should be some recognition of those rights.
Mr. Nystrom: One more if I have time, Mr. Chairman. The Joint Chairman (Mr. Joyal): Yes, your last one.
Mr. Nystrom: I believe you mentioned something to us tonight that is new, that has not been mentioned before, and that is that Section 15 of the resolution before us on nondiscrimination, Section 15 too talks about affirmative action programs and we have had before us some of the women’s organizations, some of the handicapped organizations, some other native organizations and they have been concerned about broadening the affirmative action program to inlude their groups and associations.
Tonight, Mr. Sinclair, you made a statement that you thought instead of helping, some of these affirmative action programs have actually hindered your people.
I wonder if you could elaborate a bit more on this? This is something that is new. Is there anything else that you could add?
Mr. Sinclair: The affirmative action programs and all these other piecemeal programs have come because of the neglect of governments towards our people, not because the government wants to do anything for our people. It is neglect, complete neglect of our people, and apathy.
What we are saying again, we want to make sure of this, that if we have the control over the dollars needed to train our people, to train them for the jobs, the kind of education system that we will have control of to prepare our people, we will then apply for the jobs, not be given a job simply because we have a brown face. I do not agree with that, because to me that is a form of racism. If governments cannot handle that then they are not dealing with our people. It is just as simple as that. That is why we are here, because we have been left out. We have got the tail end of everything.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Honourable Senator Lucier.
Senator Lucier: Thank you, Mr. Chairman. Mr. Sinclair, you started out your presentation tonight by saying you did not want to read your brief because you did not read very well. If I could make a case like you can, I would never read. I think you did extremely well.
The question I would like to ask, Mr. Sinclair, you made a statement tonight and I think it took a lot of courage to make it, but you believe that aboriginal rights could be extinguished with an agreement.
Mr. Sinclair: Right.
Senator Lucier: Do you think that that can be done until all Indian Metis groups agree to it? Could it be done just in part or would it have to be everyone agree to it before it could be completed?
Mr. Sinclair: The process we use would be certainly up to us but I am an elected leader, too, and I would pursue that in terms of saying, look, we have to sit down and make a fair deal, because our organization and our people are going to have to take responsibility. That is a very clear thing. Some Indian organizations I do not think have taken the responsibility. You have heard Indian organizations say we will not deal with militancy because there is a demonstration over there or there is an occupation over there.
We have been at all these occupations and all these demonstrations because we feel that we belong there as well as anyone else. We do not stand back and say we do not want to deal with that.
I believe that we are going to have to push for it but we have a democratic system. If they do not like it, I will not be here next time when you meet at the table.
Senator Lucier: Thank you. One more question. You mentioned that you have 10 per cent of the people of Saskatchewan. I think you meant all native groups form 10 per cent.
Mr. Sinclair: The nonstatus Indians and Metis form 10 per cent of the province. There are close to 100,000 of us.
Senator Lucier: Is that right, good. So you are suggesting that you feel that you should have 10 per cent of the land.
You also say that it may be a problem because some of the land will already be taken up. it would be difficult to move people.
Would you agree to an amount of money and then you go and purchase your own land.
Mr. Sinclair: If it is enough money to buy back the land, yes.
Senator Lucier: That is exactly what I am saying. Land is always for sale if the price is right. So rather than have the sections of land imposed on you, you get the money and you make your own choices. If it is wrong, you then know who to blame.
Mr. Sinclair: I think in our case that we are putting forward, we are not looking for land in Saskatoon or Regina or Prince Albert, those places, they can have it. We are looking at land in the North, unoccupied land where we can develop at our own pace and at our own speed.
Senator Lucier: That is something that I do not think a lot of people understand or want to believe, Mr. Sinclair. I think a lot of people want to believe that you are really trying to get the land in the centres and I do not really think you are. I do not think that you have ever been interested in that type of land.
Mr. Sinclair: We do not want that, that is too polluted, that land. We want to get out of that.
Senator Lucier: Thank you very much, Mr. Chairman. I have no further questions.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Lucier.
Senator Austin: One question of Mr. Sinclair and his group. I was most interested to see and read your document of September 3, 1980 and your recommendations, and there is one recommendation there in which you ask for a Royal Commission into the question of aboriginal rights. Does that continue to be your position?
Mr. Sinclair: We asked for that before there was talk about the format was out to bring the constitution home and I still feel that a Royal Commission may be a good thing simply because, like I say, politicians want to get elected and they do not want to take on an unpopular cause so it is a hard thing to say let us support that; but I think a Royal Commission would deal with the facts and of course give us the kind of publicity and the kind of input we need to deal with our case; so we felt a Royal Commission was one of the better ways to present our case or get the facts.
Senator Austin: I would be intrigued if other native groups and communities would support that idea, and I wonder whether you could give the Committee some view as to whether the NIB or NCC or other independent organizations of the Metis or any Indian community would support that organization or whether, honestly, that is very much of a minority position on your part.
Mr. Sinclair: It is not really minority position. There are 100,000 of us in Saskatchewan and I think that again the NIB would certainly have to present their own case, and we are not members of the Native Council of Canada, but we do get together as organizations with western Canada groups, and we talk about ideas and ways to deal with the question. and I think we could persuade the people that we know to support a Royal Commission. I really feel that. I have talked to a lot of people and they said that they would. We persuaded the provincial government to support a Royal Commission.
Senator Austin: If I were to say to you that, and speaking personally, should the government proceed without any additions to Section 24 or any enhancement of the definition of aboriginal rights, I would believe that the government should proceed very, very quickly with follow-up action, so that at some point in time entrenchment of rights is achieved.
I was wondering whether one possibility of a follow-up might be this kind of broadly based investigation, with a lot of public input, but I appreciate your anwer.
The Joint Chairman (Mr. Joyal): Thank you very much. Senator Austin. Mr. Hawkes, for a short question. Mr. Hawkes: Thank you, Mr. Chairman. I heard you clearly indicate that you wanted the right to define citizenship within your nation and yet when I read the wording that you propose to us on some of the clauses, for instance on page 3, you say that treaty rights are freedoms that pertain to the Indian, Inuit, Metis and other native peoples of Canada, that suggests to me that you turn over to the courts the responsibility and the obligations of defining Metis, for instance.
I wonder if you have considered that, or if my interpretation as a non-lawyer is correct. Once you put words like that in a charter, you are essentially trusting the courts to define citizenship on your behalf.
Mr. Sinclair: No, we feel that there are three ways we are going to have to deal with this. One is the moral question, one is through the political arena. and one is through the courts. We may use all three, but we feel as an organization that we will have to identify who is Metis and who is nonstatus Indians, and we will have to pursue where we will draw the line, and we have to be realistic about that, too.
I can understand the problems that some of your people face. We have to be realistic about that, but I think we would draw the line, and that again could be another thing that we would negotiate with the government once we make that decision.
Mr. Hawkes: Are you not concerned, though, Mr. Sinclair, that once you put a clause like this in the Charter that in effect you have turned jurisdiction over to the courts and they will in fact define. I wonder about a situation. for instance, if you buy some of that land, if you negotiate an agreement, then people sue to be included within the definition of Metis because you
have found a lot of oil or some other kind of resource on that land, and that the courts might uphold those claims, is that a concern at all or not?
Mr. Sinclair: The concern that we have, it is like going from the fox to the wolf, who is going to be tougher on us, the courts or the politicians. Like I say, that is going to be another road but I would personally feel that something should be enshrined in the constitution that we could at least take to the court because if we leave it to the whims of the politicians who will change it because the majority says so, and you get elected by the majority, we are in trouble.
Again, the other thing that is wrong with the democratic system, and I see it wrong in Canada today, is the fact that in a democracy the majority seems to trample on the rights of the minority groups and it leaves us out.
So you have to reconcile that some way, especially, as we say, we have to have something to protect us, and our children, and our future.
Mr. Milen: I would just say, sir, that our proposed amendment to Section 24(2) providing that Parliament shall have the legislative authority will provide us with legal authority in terms of dealing with the federal government and providing the federal government with the responsibility of making decisions and making whatever legal agreements are necessary.
Failing that then there is the court, but we feel that the proposed Section 24(2) of the Charter as we propose will help clarify the problem to which you refer.
Mr. Hawkes: In other words you are saying you would turn it back to Parliament and Parliament in turn could put that responsibility on behalf of the leadership of the Metis nation to define it, but that would be a choice that you would put back onto Parliament rather than onto the courts. That is really what you are saying.
Mr. Milen: We are saying that some government has to have the legal responsibility of dealing with the Indian, Inuit, Metis, and nonstatus peoples of Canada, and have to be responsible for making legal arrangements with them, and that is the Parliament of Canada.
Senator Austin: And have the ability to make those arrangements?
Mr. Milen: That is right, and that is why it says that the Parliament of Canada shall have the legislative authority.
Senator Austin: So you would have for example in Saskatchewan the jurisdiction necessary to implement those agreements transferred from the legislature of Saskatchewan to the Parliament of Canada.
Mr. Milen: We think so. Legally, yes.
Senator Austin: And I am sure Mr. Anguish agrees with that.
Mr. Milen: You would have to ask Mr. Anguish.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes and Senator Austin.
On behalf of all the honourable members of this Committee and on my behalf I would like to thank you and in so doing l would like to quote to you the words of an Indian song that I learned when I had the opportunity many years ago from a fellow citizen who had some background as you have, and roots as you have.
The words of that song, if I remember well, are as follows: “I heard the sound of your voice as a great wind blowing over the melted snow, after a hard winter, and I heard your voice because there is no more sand in my ear”. That is the song.
Thank you very much, The meeting is adjourned until tomorrow afternoon at 3:30 when we will have the opportunity to hear the representatives of the National Italian Canadian Congress.
The meeting is adjourned.
From National Black Coalition of Canada:
Dr. Wilson Head, President;
Mr. J.A. Mercury, Executive Secretary.
From Coalition for the Protection of Human Life:
Dr. Barry DeVeber, M.D., Head of Pediatrics at U of W.O.;
Dr. Elizabeth Callahan, M.C., Board Member;
Mr. Philip Cooper, Vice-President;
Mr. Don McPhee, Executive Director;
Ms. Denyre Handler, Journalist.
From National Association of Women and the Law:
Ms. Debroah Acheson, Member of the Steering Committee;
Ms. Monique Charlebois, Member of the Steering Committee;
Ms. Tamra Thomson, Ottawa Caucus;
Ms. Pamela Medjuck, Member, National Steering Commit- tee.
From Council of National Ethnocultural Organizations of Canada:
Dr. Laureano Leone, President;
Mr. Navin Parekh, First Vice-President;
Mr. George Imai, Secretary;
Mr. Andriy Bandera;
Mr. Algis Juzukonis.
From the British Columbia Civil Liberties Association:
Professor William Black, Member of Executive Committee;
Professor David Copp, Vice-President.
From the Association of Metis and Non-Status Indians of Saskatchewan:
Mr. Wayne McKenzie, Executive Director;
Mr. Jim Sinclair, President;
Mr. Jim Durocher, Provincial Treasurer;
Mr. Frank Tomkins, Provincial Secretary;
Mr. Rob Milen, Legal Counsel.
*On Order — Available Soon