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 24 (11 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 24 (11 December 1980).
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HOUSE OF COMMONS
Issue No. 24
Thursday, December 11, 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 Thursday, December 11, 1980:
Mr. Fraser replaced Mr. Crombie;
Mr. Friesen replaced Mr. Beatty;
Mr. Leduc replaced Mr. Gimaiel;
Mr. Rossi replaced Mr. Irwin;
Mr. Dantzer replaced Mr. Hawkes;
Mr. Hawkes replaced Mr. Dantzer;
Mr. Dantzer replaced Mr. Friesen;
Mr. Henderson replaced Miss Campbell (South West Nova);
Mr. Irwin replaced Mr. Leduc;
Mr. Blackburn replaced Mr. Robinson (Burnaby);
Miss Campbell (South West Nova) replaced Mr. Rossi;
Mr. Darling replaced Mr. Oberle;
Mr. Blackburn replaced Mr. Robinson (Burnaby);
Miss Campbell (South West Nova) replaced Mr. Rossi;
Mr. Mayer replaced Mr. Darling;
Mrs. Côté replaced Mr. Corbin;
Mr. Robinson (Burnaby) replaced Mr. Blackburn.
Pursuant to an order of the Senate adopted November 5, 1980:
On Thursday, December 11, 1980:
Senator Maurice Lamontagne replaced Senator Pietro Rizzuto;
Senator Ernest G. Cottreau replaced Senator Wm. J. Petten;
Senator Renaude Lapointe replaced Senator Carl H. Goldenberg;
Senator Lowell Murray replaced Senator Martial Asselin;
Senator Andrew Thompson replaced Senator Jack Austin;
Senator Martial Asselin replaced Senator Lowell Murray;
Senator Florence Bird replaced Senator Andrew Thompson;
Senator Jack Austin replaced Senator Florence Bird;
Senator W. J. Petten replaced Senator P. Derek Lewis;
Senator Lowell Murray replaced Senator Duff Roblin;
Senator Dalia Wood replaced Senator W. J. Petten;
Senator Richard Donahoe replaced Senator Martial Asselin;
Senator Yvette Rousseau replaced Senator Maurice Lamontagne;
Senator Maurice Lamontagne replaced Senator Yvette Rousseau.
MINUTES OF PROCEEDINGS
THURSDAY, DECEMBER 11, 1980
The Special Joint Committee on the Constitution of Canada met this day at 10:35 o’clock a.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Cottreau, Hays, Lamontagne, Lapointe, Lewis, Lucier, Murray, Roblin, Thompson and Tremblay.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Dantzer, Epp, Fraser, Friesen, Gimaiel, Hawkes, Irwin, Joyal, Lapierre, Leduc, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Rossi.
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. John McDonough, Researcher.
Witnesses: From Club Media of Canada: Mrs. Esther Crandall, President and Miss Alison Hardy, Historian. From Canadian Association of Lesbians and Gay Men: Mr. Peter Maloney, Member of the Executive Committee; Ms. Christine Bearchell, Mr. George Hislop, Mr. Paul-François Sylvestre and Ms. Monique Bell.
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.)
Mrs. Crandall and Miss Hardy made statements and answered questions.
Messrs. Maloney, Sylvestre and Hislop and Ms. Bearchell and Ms. Bell made statements and answered questions.
At 12:47 o’clock pm., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met this day, at 3:37 o’clock p.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Bird, Cottreau, Hays, Lapointe, Lucier, Petten, Roblin, Rousseau and Tremblay.
Representing the House of Commons: Messrs. Bockstael, Corbin, Dantzer, Epp, Fraser, Hawkes, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Rossi.
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 Canadian Association for the Prevention of Crime: Mr. W. Frank Chafe, President of Association; Professor Fred Sussman, Chairman of the Committee on Legislation and Dr. Tadeusz Grygier, Member of the Committee on Legislation. From Canadian Committee on Learning Opportunities for Women: Mary Corkery, Coordinator; Linda Ryan Nye and Monique Burchell.
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.)
The witnesses from the Canadian Association for the Prevention of Crime made statements and answered questions.
The witnesses from Canadian Committee on Learning Opportunities for Women made statements and answered questions.
At 6:12 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 8:06 o’clock pm., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Cottreau, Donahoe, Hays, Lapointe, Lucier, Murray, Tremblay and Wood.
Representing the House of Commons: Messrs. Blackburn, Bockstael, Miss Campbell (South West Nova), Mrs. Côté, Messrs. Dantzer, Epp, Henderson, Irwin, Joyal, Lapierre, Nystrom and Robinson (Burnaby).
Other Member present: Mr. Murta.
In attendance: From the Research Branch of the Library of Parliament: Mr. Louis Massicotte, Researcher.
Witnesses: Professor P. L. Aird; Professor D. V. Love, Faculty of Forestry, University of Toronto, From the Canadian Abortion Rights Action League: Mr. J. Robert Kellermann, Legal Counsel; Ms. Eleanor Wright Pelrine, Honorary Director; Dr. Wendell W. Waiters, M.D., Honorary Director.
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. Aird and Love made a statement and answered questions.
The witnesses from the Canadian Abortion Rights Action League made a statement and answered questions.
At 10:12 o’clock pm., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Thursday, December 11, 1980
The Joint Chairman (Senator Hays): Ladies and gentlemen and members of the Committee, if we can get started, we would like to give the Media Club of Canada all the time we can.
We have provided an hour for them and lam sure they have a very important brief and we are looking forward to listening.
Representing the Media Club of Canada we have Ms. Alison Hardy and Ms. Esther Crandall. We appreciate your being here, and you know the procedure, that we would like you to make some brief opening remarks and then the Committee would like to ask you some questions.
You may proceed.
Ms. Esther Crandall (President, Media Club of Canada): Honourable Chairmen, my name is Esther Crandall, I am President of Media Club of Canada. This is an organization for journalists, professional writers. I am here today as a witness for this organization.
On my left is Alison Hardy, Media Club of Canada historian.
Thank you, Mr. Joint Chairman, for giving the Media Club the opportunity to before this Special Joint Committee. As you will see from our submission, Media Club is concerned with the profession, therefore concern of members is with the proposed entrenchment in a charter of rights and freedoms of a new Canadian constitution, freedom of the press.
Media Club has attempted to keep its submission as much to the point as possible, and I will do the same thing in these opening statements.
There have been times in the past when governments or other bodies have called upon Media Club of Canada to research and perhaps comment on certain things which were then under consideration. Two things come to mind: a study on Canada’s immigration laws which I believe was carried out in the early 1970s; and on the international level, a study on protection of journalists in areas of conflict.
However, in the case of a proposed new Canadian constitution Media Club has taken the initiative. Member interest in the proposed entrenchment of freedom of the press became apparent during the last two weeks of October 1980 when I travelled across Canada on behalf of this organization. During that trip I met with members and journalists in six cities between St. John, New Brunswick and Vancouver, British Columbia. At the time members felt they could not begin to deal with this aspect of the proposed resolution until they could inform themselves as to the exact context in which entrenchment of this freedom had been proposed. For whatever reason, copies of the proposed resolution have been slow to reach members by mail.
I would like to say this morning I have not been able to confirm that members have yet received copies of this resolution, although the complete membership list was forwarded to the office in early November. My own copy took four weeks to arrive. I point this out simply to inform you as to our situation.
We feel that in order to comment. make some kind of a submission, form some opinion as to the proposed entrenchment of this freedom of a quality that we would like to present to this Committee, we would have had to have time to research, consider and discuss the matter nationally. Members would like to do that if there was time.
The one recommendation that Media Club would make is that there be provision—this is in the last paragraph of the submission which all of you have:
that provision be made which would allow this organization to return when it has had time to do what it must do, in order to present an informed, well thought out response to the proposed entrenchment of freedom of the press
We would be glad to attempt to answer any questions anyone might have.
Miss Hardy is first, on work that has been done until now on freedom of the press, and she can, perhaps, tell you about opposing views that have come to light.
Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much. Are you ready for questions, now?
Ms. Crandall: Yes, sir.
The Joint Chairman (Senator Hays): Mr. Hawkes, followed by Mr. Nystrom.
Mr. Hawkes: Thank you, Mr. Chairman.
I compliment the ladies on the succinctness of the brief. It is far and away the shortest we have received.
Yesterday in this Committee, and you probably did not have a chance to see the proceedings because the House of Commons was open until midnight, and the last three and one-half hours of our deliberations would have been aired, I presume, on cable TV after midnight, but the procedural issue which we dealt with yesterday was the timetabliing of this Committee using February 6 as the new closure date for reporting back to Parliament and the decision reached, on division, in this Committee was that requests to appear before us would be entertained until December 17 and that written briefs would have to be received by December 31.
The thrust of your presentation to us today is that you have not had sufficient time to deal with your membership on a very important issue, freedom of the press, and that you are not adequately prepared to come here before us today and present the opinions of your membership on that very important part of the proposed constitutional resolution.
So my first question is, would you be prepared to present a written brief to us by December 31, or is that, in your opinion, still inadequate time?
Ms. Crandall: Sir, I do not wish to be difficult, but the Club feels that a year would not be too long in which to prepare the kind of a brief that we would like to prepare. This, on a national basis, would involve a fair amount of research. There should be a national meeting, centrally, for discussion on whatever research we have turned up and some consensus should be reached.
We also feel that we would like journalists who are outside of the Club to have an opportunity too, if they so wish, so that the sheer logistics of organizing such a thing would go well beyond a matter of months.
Mr. Hawkes: Okay. Could you give us some, and perhaps Ms. Hardy would be the one, but could you give us some, at least some preliminary understanding of the complexity of the issue of freedom of the press? We have had some previous briefs from ethnocultural groups in particular, who are concerned about the spread of hate literature. They feel that their freedoms and their rights within the country are infringed upon when hate literature is allowed to flourish or when you have a society that permits it. So that is, in a sense. I guess, the polar opposite to total freedom of the press and freedom of journalism, and I am wondering if you could just give us some sense of your understanding of the complexity of this issue and why it would take this additional year for you to feel well prepared to present us with a brief?
Ms. Alison Hardy (Historian, Media Club of Canada): Perhaps I might make some comments, Mr. Hawkes.
There are certain information about freedom of the press that I would like to give the Committee on behalf of the Media Club. We are very pleased with the proposal in the constitution act for 1980, but perhaps you are aware that we are covered as a member country of the United Nations, by the Universal Declaration of Human Rights which was approved by the United Nations in 1948 on December 10.
Now this means that, under Article 19, everyone has the right to freedom of opinion and expression and this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, and regardless of frontiers.
There is another U.N. convention to which we acceded in 1976, it is called the International Covenant on Civil and Political Rights. And under, also Article 19, Section 2, states:
Everyone shall have the right to freedom of expression. This right shall include the freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally or in writing or in print, in the form of art, or through any other media of his choice.
We certainly respect the worry of ethnic groups over hate literature and perhaps Section 3 of this same Article would help: it says
The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions but
these shall only be such as are provided by law and are necessary.
The Senate Committee on the Mass Media, when they tabled their report in 1970, had a chapter on freedom, and they mentioned that when they approached the media, they got two differing points of view on freedom of the press, what it meant to the media.
One was that it was the newspapers’ freedom to publish. That was one point of view. The alternative was that the freedom of the press centres around the public’s right to know. These may seem alternatives, complete alternatives, but to me they could perhaps be considered complementary. There have been a number of reports in the last while about the “fourth estate” and the power of the “fourth estate” and the place it has in society and in our cultures and this is something that needs further discussion. This is something which needs further discussion. It is a very interesting point which should be raised. Freedom of the press is a subject well worth considering as a viable subject for discussion.
Mr. Hawkes: Thank you very much.
There have been only one or two briefs which have peripherally mentioned the notion of responsibility. People have come before us and given us a great deal of information on the exposition of rights without the concomitant or second side of rights which carries with it some sense of responsibilities.
Can you expand on any thinking which you have done other than just quoting back from that paragraph on the responsibilities side?
Does the notion of responsibility take us into some very practical issues such as the issue as to whether or not journalists have the right to refuse to reveal sources of information? Should that type of thing be an untrammeled right or should there be some notion of responsibility which is also tied into that kind of right?
Ms. Crandall: I might be able to answer that question best by giving you two opposing points of view that I came across when I was travelling between Saint John and Vancouver, so far as that sort of thing is concerned, And exactly what constitutes what.
One school of thought suggests that freedom of press should be defined very clearly.
Another school of thought suggests that it should not be entrenched in the Charter at all, and that the less said the better, and that if you were to pin it down too much you would run into trouble.
So that you have the two different points of view. This is a throw back to your previous question, an indication of the complexity that we face in trying to make some kind of judgement as far as the proposal is concerned.
I would like to say that Media Club has taken no stand one way or the other as far as the proposed entrenchment of this freedom is concerned.
Now the reason why we have not done that, is that at the moment we do not know whether we, as journalists, would be
better or worse off with this entrenched in the Charter than we are at the present time; and, as far as responsibility is concerned, that is what we are talking about now.
We do not want to react to this proposal irresponsibly. We would be acting irresponsibly if we were to attempt to give you any kind of assessment or opinion on what has already been proposed without having had an opportunity and the time to do what research is necessary, because it is really a complex issue.
Ms. Allison Hardy mentioned the United Nations Convention. We have considered that. We do not know that might fit in with that, quite apart from how it would be in Canada.
So that I think responsibility is the whole key here.
We would like to do something which is of quality. the type of thing that this deserves, because it is a very important freedom and a very serious matter. But we would want to do it in a responsible way.
Mr. Hawkes: It is really your jornalistic ethic about getting it right before you report that lies at the heart of your brief?
Ms. Crandall: We would not like to report it until we have done our homework, sir.
Mr. Hawkes: Thank you very much.
The Joint Chairman (Senator Hays): Thank you, Mr. Hawkes.
Mr. Nystrom: Thank you very much, Mr. Chairman.
I want to welcome the witnesses here this morning, the Media Club of this country, which, I understand was formed as far back as 1904, comprising professional writers and journalists, to answer a series of questions on something which has not been raised before.
I want to refer you to Section 2 of the resolution which is a Section on fundamental freedoms. It says:
Everyone has the following fundamental freedoms: (a) freedom of conscience and religion, (b) freedom of thought, belief, opinion expression, including freedom of the press and other media of information
What I want to ask you is, how do you think the word “everyone” would be interpreted as it pertains to everyone has the following freedoms, the freedom of the press, freedom of other media of information.
I want to take you back in this country about four of five years when the government across the way introduced legislation, which I supported, concerning Time magazine and Reader’s Digest, to try and Canadianize the magazine industry in this country.
I am wondering whether or not if we were to enshrine Section 2 in the constitution as written, Time magazine or Reader’s Digest could have gone to the courts and said: “We have a consitutional right in this country of freedom of expression and freedom of the press and freedom of information, freedom of the media; therefore, the government of Canada
and the Parliament of Canada do not have the right to legislate restrictively against our two organizations.”
Could it be interpreted in that way?
Ms. Crandall: Mr. Nystrom, I think that is the kind of question which an expert should be asked to answer.
This is what we are saying now, We have not had an opportunity to look at all sides of these questions to give you any kind of an answer.
Again, I am not trying to be difficult. But that is one of the questions which we would like to ask someone who is knowledgeable.
Mr. Nystrom: I appreciate the answer. The reason why I ask the question is that the words “everyone” and “citizens of Canada” are used throughout the resolution. I am not a lawyer myself, but it would seem to imply that these could be given a fairly wide interpretation, and I am concerned that we might have in a constitution something that is restrictive where we could not increase Canadian content.
Let me ask you the same question again about the electronic media. There is growing concern that we Canadianize radio, television—and the CRTC is concerned about this, about television programs coming in from the United States. There is talk now about a second CBC network in this country.
Again, I want to ask you a similar question pertaining to the electronic media. If everybody has the freedom of expression and freedom of the press and other media of information, in your opinion, or perhaps in the opinion of your colleague, do you think we would be able to do this as a Parliament, where the constitution says we are denying a fundamental right to everyone, perhaps NBC, New York, or ABC somewhere in the United States?
Ms. Hardy: I think, Mr. Nystrom, that it is very important. I have served abroad for Canada in the Department of External Affairs, in the public affairs field, and I feel that it is very important that we develop a Canadian culture, that we develop an interest in things Canadian and a pride, and I grant that there are very good programs produced by the electronic media of other countries but I think we should be proud of our own heritage and be proud of what we can do.
I have just been at a briefing on plans for CBC 2, Tele Deux, and I am very pleased that this is what may be coming along shortly and I would hope that we would not refuse all foreign media offers to assist us in our cultural development, but I think we should certainly give ourselves the chance to be first in the field and to welcome the opportunity and the pride in our own country and in what we can develop ourselves.
This is a continuing subject of interest financially as well as culturally, naturally, and I would hope that the media club, which now covers the electronic media representatives as well as the press, would be in the forefront of assisting in developments if possible. Thank you.
Mr. Nystrom: I wonder if you could possibly, if you have time to do a written brief to the Committee, to try and seek some advice on those questions, because I agree fully with you that we have to develop a Canadian culture and of course we need some input from other countries around the world because we are part of the global village, we have to have a Canadian identity and it is very important, and I would be very concerned if the way Section 2 is written that perhaps we could be denied through our constitution the right to develop fully the Canadian culture and pehaps you could look at that.
I also wanted to ask your interpretation of a couple of other words in Section 2. I wanted to ask you what you think the interpretation in your opinion would be of other media of information. We have singled out here freedom of belief, opinion, expression, including the freedom of the press. I know what the press is, I think, but what would be the interpretation legally, in your opinion, of other media of information, what would that include?
Ms. Hardy: I would expect that that would include the electronic journalism. The press is usually referred to as print media. Media is a very broad term that has had to be used because you cannot just refer to the press now because it covers a number of other representatives who inform, through one source or another, and I think the electronic media has an important place now in our culture because communications in this country is an aspect of helping unify the country, I think, by letting us get to know each other, not only through print but through electronic means.
Mr. Nystrom: Would you prefer a better enumeration of what they mean here, would you prefer us to have more detail?
Ms. Hardy: We would have to study and see if it were necessary. It is very difficult sometimes to include everything in a paragraph without taking a page instead of a paragraph, a short paragraph, and it may that the designers or drafters of this section felt that other media of information would cover anything necessary.
Mr. Nystrom: I wanted to switch to one more area that was raised a bit by Mr. Hawkes if I have one or two minutes.
On Tuesday before our Committee we had a couple of very moving presentations, in my opinion, We had the National Black Coalition of Canada in the morning and they talked a bit about the Ku Klux Klan, and then in the evening we had the Association of Metis and Non-Status Indians from Saskatchewan and they also talked about the Ku Klux Klan and hate literature and organizations that espouse the destruction of another race or another group in our society, and I remind you in Saskatchewan the concern by the Métis Society, Non-Status Indian Society arises from our historical roots where unfortunately we are the only province where, historically, the Klan had a major impact, in fact in the 1920’s they had nearly 30,000 members I think in our province, and around 40,000, of course, who were active in the country according to the Black Coalition.
Now, we were asking them questions on Tuesday about some of the fundamental freedoms, where they believed that
people should have the freedom of peaceful assembly and association, the freedom of conscience, the freedom of thought and the freedom of belief, but I noticed in your brief that you do not really want to restrict any of these freedoms and yet you are saying in your letter to Senator Hays and to Mr. Joyal that the objectives of your organization include working for free and responsible expression. You also want to develop and maintain high professional standards, and those are very laudable goals.
Now, I am wondering whether you thought about enshrining those kinds of goals in our constitution without limiting the freedom of thought, freedom of belief, freedom of expression, and it is a question that we asked the Black Coalition because they believe in these fundamental freedoms although they were pondering whether or not we should not put something in our constitution that would restrict those freedoms when those freedoms were intentionally being misused to destroy a race of people, which could eventually lead to genocide. I know it is a very difficult question and I wanted to ask you as professional writers and professional journalists how we reconcile these two things, the need for freedoms but the need for responsibility where we do not abuse those freedoms to hurt another group of people, people that do not share the same religion that we share or have a different colour of skin.
Have you done much thinking about how we could do that?
Ms. Crandall: Yes. You have quoted information in the letter to the Chairman that lists the main objectives of the Media Club of Canada. We are quite proud of this set of objectives, we feel they are rather unique and we do not know another organization in the country that has them, and I am interested in your suggestion, the one that you quoted, to work for free and responsible expression through the communications media, develop and maintain high professional standards. that they be perhaps included in some sort of a definition. That is very interesting.
The thing is that this is part of the whole thing that we would like to consider. We do not like to come across as being negative towards anything, we just would—this is really what the Media Club is all about and we are very interested but we hesitate to do anything. The Media Club traditionally has been very conscious in undertaking any such things as this and the members have not wanted to form any kind of judgment or attempt to reach a consensus until they have seen as many sides as is possible given the resources that we have.
Gaining some kind of consensus in the first place is not easy to do nationally. Journalists and professional writers are rugged individualists. I do not mean that they will not—they are the most co-operative people in the world, but they are very busy people and it is not always easy to get a few to agree so that we really have to come together and talk about it if it is going to be a fair assessment.
However, certainly that is a very good suggestion and we will keep that in mind.
Mr. Nystrom: Thank you very much. Thank you very much, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Mr. Nystrom. Senator Lapointe.
Senator Lapointe: First I would like to say that I am very glad to welcome some of my esteemed colleagues here this morning, and I would like to ask you if you have considered, Ms. Hardy, the notion of freedom of the press as an individual right or collective right?
Ms. Hardy: It could be considered both because if you speak of freedom of the press for a newspaper, it includes the whole role of a newspaper in a community as well as the role of an individual reporter or columnist, so that I really feel that there would be no point in having freedom of the press for an individual if you did not have it for the publication for which the individual happened to be working, either perhaps in the electronic media or in the print media.
So I would prefer to have it refer to both an individual and collective group.
Senator Lapointe: Do you think that editors of papers or radio stations would have to come here also to express their opinion on freedom of the press?
Ms. Hardy: We would include them as responsible leaders, presumably in the community, and the value of having responsible leadership is very noticeable now that the Royal Commission on Newspapers is sitting and I think that you have to have the leadership in order to develop followers and principles.
Senator Lapointe: Yes, You are asking for more time in order that you can poll your members but if you received very divergent opinions what would you do, how would you choose between the yes and no’s concerning entrenchment, for example? Who will make the final decision when you present the brief if you have time to present one?
Ms. Crandall: I think the only way that can be done is to carry out the research first as much as possible and then meet nationally at some central area for discussion a group of delegates with the idea in mind that they do indeed want to reach some consensus and then vote on it.
One thing I would like to clarify and that is that the Media Club of Canada has as members, its membership is open to everyone in the communications media, the working reporter up to the newspaper owner, for that matter, and we have very good communications with a number of the publishers and editors as a result of this so I do not see that as any problem.
Senator Lapointe: Do you think that Section 2(d) is large enough to include all the rights that you would like to have, large enough or vague enough to include all the rights that you want.
Ms. Hardy: Sometimes it is very useful to define in slightly vague terms, perhaps philosophical terms, something like this. It leads of course to discussion, over the years, ‘debate, decisions, sometimes legal decisions. This is a proposal for fundamental freedoms that must have been looked at and studied on the basis of the general usefulness of having fundamental
freedoms. I would hope that there would be some reference to the responsibilities of having these freedoms as well which might be helpful.
This is a rather broad section and does include quite a number of freedoms that are considered very useful to a citizen of a country.
Senator Lapointe: But actually are you afraid of its vagueness or are you afraid of entrenching it in the constitution?
Ms. Crandall: We are not afraid of anything. We do not know. This could be perfectly line, this could be the very best way to handle freedom of the press, or it could be the very worst way. This is our problem. We do not know because we have not had time to even consider it.
Many of our members across Canada are still waiting for copies of this. They have not even yet seen the context in which this has been proposed. So at the risk of being difficult again, which I do not mean to be, the Club has been unable to form any kind of assessment as to what they may or may not think about the proposal. It could be fine; it could be the best thing in the world.
Senator Lapointe: Did you ever look at the Constitution of the United States, for example, to see what they are saying about freedom of the press.
Ms. Crandall: That is another thing that we want to do and we understand that in either Norway or Sweden, one of the Scandinavian countries, there is a freedom of the press law and we are trying to obtain a copy of that, too. That is another thing we would like to do, to see what other countries have, but this takes time.
Senator Lapointe: You seem to establish a relation between our culture and freedom of the press. What relation do you establish between the two? It seems that freedom of the press could be the same in many countries. apart from culture.
Ms. Hardy: When I spoke of culture perhaps I was using a very broad philosophical term and freedom of the press is only part of developing our culture, expressing it. It could be that other countries have different approaches to the value of freedom of the press or to the value of their culture that they would accept other suggestions as fundamental freedoms. I think as the Media Club we are particularly interested in the freedom of the press and how it might aid our cultural development in Canada.
Senator Lapointe: In what way?
Ms. Hardy: By explaining us to each other, by explaining us to ourselves, by interpreting developments in this country sensibly, by really reporting what is going on, not just providing sensational coverage as certain aspects of media coverage is, but really trying as intelligent knowledgeable people, members of the “fourth estate”, to interpret these developments, to explain, to fit them into the context of our history, to fit them into the context of developments in the regions across the country and to balance the reporting in a knowledgeable fashion.
Senator Lapointe: Actually, do you think we have sufficient freedom of the press?
Ms. Hardy: We have perhaps quite a lot of freedom of the press. It is not always perhaps used as responsibly as it might be, but sometimes there are constraints of time, there are constraints of space, there are constraints of development of the ideal reporter, the ideal commentator, the ideal columnist; and we do live in an imperfect world, I am afraid.
Senator Lapointe: Yes, but do you complain about the law instead of complaining about the lack of competence maybe or kind of the journalists themselves, but are the laws restraining your freedom of the press actually, the Canadian laws.
Ms. Hardy: I am not sure that they are. We have the Canadian Bill of Rights and we have the Canadian Human Rights Act and the Official Languages Act and the Criminal Code and of course we have the Declaration of Human Rights at the United Nations and the UN Covenant which would seem to permit sufficient freedoms for us.
Senator Lapointe: Do you agree with the covenant.
Ms. Hardy: With the UN Covenant?
Senator Lapointe: Yes, the part which deals with freedom of the press.
Ms. Hardy: Yes, l feel that that is an important aspect, not only having the rights but having the responsibilities. I think they fit in together.
Senator Lapointe: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Senator Lapointe. Mr. Friesen.
Mr. Friesen: Thank you, Mr. Chairman. To the witnesses, you have mentioned several times the UN Charter. There is another UN document called the McBride Commission Report and the Canadian delegatin to that UNESCO document has given at least a benign acquiesence if not outright approval to that document. I am sure you are aware that the heart of that document deals with limitation of the press and even government agencies controlling the press.
Do you not see a potential contradiction between Canada’s approval of that document and the provisions in this charter regarding fundamental freedoms and the freedom of the press.
Ms. Crandall: I believe earlier I mentioned that this was one of the things which we should consider, what if any conflict there could be between this as proposed and something in international law or convention. There are bound to be ramifications. We do not know what they are. This is the problem, because there has not been time to obtain this information, look at it and get some kind of a valued judgement on it.
Ms. Hardy: Perhaps I could add some comments. We were very pleased of course that one of the members of the McBride Commission was a Canadian and we have heard her briefing us at a Media Club meeting here as well as at the Canadian Commission for UNESCO meeting last spring.
The main thrust of that commission report, or the main reasons why the McBride Commission was established, appear
to me to be the problems of what they term “third world countries” in having their views expressed to the world not through their own news media but through that of a foreign agency, news agency, and so on. This is a difficulty. The big news agencies have the techniques and the opportunities to provide coverage, but they may not have complete knowledge of the country, they may not be as sensitive to developments and their interpretations may not be always local interpretations, but their views.
Perhaps the Committee is aware that in some ways we might be considered a Third World country because news of us goes abroad usually through other sources than Canadian.
Mr. Friesen: Yes, but there are two points. One of them is that you have not really addressed yourself to the question and that is do you not see an inherent contradiction between the provision in this charter and the direction of the McBride Commission report, and could I ask the related question. Has your association studied the report of the McBride Commission and has it taken a position on it.
Ms. Hardy: We have not studied the McBride Commission Report in the Media Club. We have heard Ms. Zimmerman’s report and this was prior of course to the recent meeting this fall in Belgrade.
The general assumption seems to be that there might be problems arising from some of the portions of the McBride Commission as you suggested, but they are not quite sure yet; but the thing is it is a difficulty for many different countries of differing points of view to settle on all points of any report, and it may well be possible that some of their fears will not be realized, it may be possible that some of them will be; and we will just have to adapt as the global village finds what is really happening.
The Joint Chairman (Senator Hays): Your last question, Mr. Friesen.
Mr. Friesen: I sensed in your first answer somewhat of an ambivalence between your desire to see total freedom of the press as we enjoy it now in Canada and some of the aspirations expressed in the McBride Commission Report. There seemed to be an ambivalence there. Am I correct in assuming that and could I ask what is possibly a related question that is domestic and not foreign, if we were to adopt the charter’s provisions as they are now would you consider, let us say, that restrictions on pornographic literature would be a contradiction and restriction on freedom of the press or form of censorship or so forth.
Ms. Hardy: I am sorry I am continually referring to my views, but I feel very strongly that we should be living in a moral society and morality should have some way of governing or helping us decide, within which we should operate as press freedom.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Friesen. If I seem to be cutting you people off a little
sharply we have eight witnesses today and we will have to stay fairly close to the time. I hope you appreciate that.
Mr. Lapierre: Thank you, Mr. Chairman.
Ladies, I am pleased to welcome you here and you can be assured that we are very impressed by the goals of your organization but I would like to know what is the membership of that organization.
Ms. Crandall: At the present time, sir, we are in the middle of a membership drive and some of our members are also renewing. We must renew every year, we cannot just continue on indefinitely. The members renew on the basis of their work. At the present time I would say that we have over 160 and there are applications coming in and I presume they have not been approved or whatever as yet.
Mr. Lapierre: I understand.
I am a bit worried when you say that your members did not have time to take a look at the contents of the resolution. As those people are close to the press—we have many journalists here covering regularly our deliberations, ever since the date the resolution was tabled, on October 12, some three months ago—I am a bit surprised that your members did not have time to look at that because it was broadly mentioned in nearly all the newspapers of Canada.
Ms. Crandall: Yes, sir. I realize that we have had reports in the newspapers, on television and radio.
But we wanted to see a copy of the original resolution.
Secondly, our members are not all members of the working press. It covers any area of the communications field. We can be authors, we can have freelancers and there are a large number outside of Ontario who do not, perhaps, have the resources to call Ottawa and are not on staff of a newspaper and they do something else, they are all working; but they are not in the working press, in order to be able to obtain that in any other way but by mail. They could, but I am sure if many of them thought it would have taken so long they would have done something else.
Mr. Lapierre: You certainly know that there are many members of the press here and I must tell you sincerely that ever since the resolution was tabled, on October 12, no member of the Parliamentary Press Gallery did mention any restriction to me as far as Section 2 is concerned and I have met no objection to that section.
I know it is fairly difficult to study wideranging principles over a short period, but as your organization has been in existence ever since 1904, I thought that you had had a lot of time to ponder on the concept of freedom of the press and on how to protect that freedom as best as possible.
Ms. Crandall: In this submission we are dealing specifically with the freedom of the press as proposed. That is the one thing we are concerning ourselves with here today. In anything
we would want to get the original before doing anything, to see how it is being proposed—the context as Ms. Hardy has said, we have kept pace, but in this one particular instance it has been impossible to react in any honest, fair and responsible way.
Mr. Lapierre: Fine.
Now, you are humbly asking the committee to allow your organization to come back because you want to make consultations, you want to organize a national meeting and so on.
How long would that take?
Ms. Crandall: I believe a member asked a similar question earlier. We would not be prepared to come back by December 31. We feel a year would not be too long to do what we would like to do.
We would like to have some provision whereby we could come back to Ottawa at a later time and tell you what we had found out.
We are not objecting to the way it has been proposed; nor are we supporting it. We do not know.
Mr. Lapierre: Fine.
As you know, there is nothing new about enshrining the rights. That is what the Prime Minister has said for several years and many projects were tabled during some federal-provincial conferences.
Did you learn about those documents at the time?
Ms. Crandall: I have not had access to them. Any documents which might have appeared before this, certainly would be of interest. But when it comes to the proposed new constitution, it is this one document with which we are concerned.
Mr. Lapierre: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lapierre.
Senator Roblin: Thank you, Mr. Joint Chairman.
I would like to tell our witnesses that they are presenting us with one of the most important subjects which we have to discuss in the course of our study of this bill. That is very much appreciated.
I really have three points I would like to inquire about. The first relates to the type of freedom which is not mentioned in Section 2, but which, perhaps, deserves some consideration in a Bill of Rights, and that is freedom of information.
I believe you may be aware that bills have been introduced into the House of Commons of the federal legislature to provide for freedom of information. They have not yet become laws, but they are certainly being considered very carefully.
It occurs to me that you might have some opinion as to whether or not the subject of freedom of information is a suitable one to include in a Bill of Rights which would have some priority over regular legislation and give status, as it is thought, to that aspect of freedom which would not be accorded to a regular bill of Parliament.
Should freedom of information be considered by this Committee as one of the freedoms we should pay special attention to?
Ms. Hardy: I consider freedom of information to be an important subject, and I am glad that there has been a continuing development in this field, so that when we have all the freedom of information we need, it will be well and sensibly set up based upon experiences in other countries.
It is important that if you are going to have an informed citizenry, that the government provide information to them to educate them.
People look to the government now for so much in the line of information. it is a tremendous source of information. l think it is very valuable that there is an opportunity for citizens to get in touch with their member of Parliament or department of government, either at the federal, provincial or municipal level, and to obtain the required information.
The National Council of Women of Canada put forward a resolution in their 1976 brief to the Federal Cabinet, urging the value of this; and it is in that context that I have referred to the United Nations Convention on Civil and Political Rights as background information which is basic, not only to the rights, but also to responsibilities.
Senator Roblin: So I take it you would like to see some protection for freedom of information in this bill.
My second point has to do with the McBride report which has already been referred to. I am bound to say it alarms me that in the Universal Declaration of Human Rights, to which you have referred, you read Article 19 which talks of freedom of information and expression regardless of frontiers.
Yet, it seems to me that the McBride report—and I would consider it unfortunate indeed if any representative of the Canadian government had put too great a measure of agreement to that matter—is a complaint by the nonaligned or third world that they do not like what is being said about them. Now, that is one of the problems with the freedom of the press. There are lots of people around this room who sometimes do not like what is said about them in the press. Then there are groups in other parts of the country who feel that their points of view are being misrepresented.
So that this is a standing problem with which you are dealing—the freedom of the press, that some people do not like what you say about them.
What I fear about the McBride report is that it would enshrine, as an item of belief in the United Nations, that the third world countries should be allowed to control or to regulate the news across frontiers. What they do within their own frontiers is no doubt their own business; but when it comes to the dissemination of news on a worldwide basis, they intend, I think, to abrogate this “regardless of frontiers” concept which is enshrined in the Universal Declaration in favour of the McBride report.
I hope that if you have given any thought to this question, that you would consider this in the light in which I have expressed it.
The third point I would like to make has to do with what I think is a very desirable sentiment expressed in your letter to the Committee in which you talk about responsible expression.
It is always difficult to give concrete meaning to responsibility, when you are dealing with news, as the third world people and the McBride committee are pointing out to us.
I was wondering whether your body had given any thought to the possibility of a national press council which might exercise some professional discipline in this field. As you will be aware, there is such a council in Great Britain, as there is also on a provincial basis in Canada.
Have you any views as to the desirability of a press council as a means of introducing a greater degree of responsibility, should that be desired in this question of freedom of the press?
Ms. Hardy: Since there are some provincial press councils—and I have received material from the Ontario Press Council—I would say I think they are doing a very good job in carrying out their tasks responsibly and their member newspapers are also acting in a responsible way when discussions occur on problems which have arisen.
At the moment I cannot see any need for a national press council if the provincial or territorial press is covered by individual press councils.
Senator Roblin: Thank you, I think that is a reasonable point of view.
Thank you. Mr. Joint Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Senator Roblin.
On behalf of the Joint Chairmen and members of the Committee, I would like to take the opportunity to thank you, Mrs. Crandall and Mrs. Hardy for being here this morning, representing the Media Club of Canada.
Senator Roblin put it well when he said that your brief was a very important one and that we will be considering it very carefully.
Thank you very much for being here.
Ms. Crandall: Thank you, sir.
The Joint Chairman (Mr. Joyal): I would like to invite the representatives of the Canadian Association of Lesbians and Gay Men to come to the witness table so that we could continue our proceedings with them.
It is my pleasure to welcome on behalf of honourable members of this Committee, Mr. Peter Maloney, Miss Christine Bearchell, Mr. George Hislop, Mr. Paul-Francois Sylvestre, and Madamoiselle Monique Bell.
It is our usual procedure to invite our guest witnesses to make an oral statement to inform members generally of the position of our witnesses on the different sections of the proposed resolution, and then to invite them to answer questions put by honourable members of this Committee.
I understand Mr. Peter Maloney will be the one who will speak on behalf of the Canadian Association.
Mr. Peter Maloney (Member of the Executive Committee, Canadian Association of Lesbians and Gay Men): Thank you, Mr. Joint Chairman.
The Canadian Association of Lesbians and Gay Men is the successor organization to an organization with which some of you may be familiar, namely the Canadian Lesbian and Gay Rights Coalition which was founded in 1975. We were given a mandate at this year’s Eighth Annual Conference of Lesbians and Gay Men which took place in Calgary in July to appear before various legislative committees in regard to areas of concern to us.
This is our first appearance before any committee of either the House or of the Senate. We will, of course, in the coming year be appearing before a number of committees in regard to the Criminal Code amendments which are about to be proposed by the Minister of Justice in regards to amendments which are going to be proposed in the coming year as regards the Canadian Human Rights Act.
Because of the 48-hour notice which we received to appear before your Committee, I would like to extend the apologies of other members of the Executive Committee who would like to express their regrets for being unable to appear as a result of the short notice.
Briefly, I would like to introduce the members of our delegation to you and to request them one-by-one to speak.
First, to present them as a group, the two on my right are Christine Bearchell, who is the Co-ordinator of Pink Tights, a gay-feminist type setting collective and member of the Body Politic Collective, the National Gay Newspaper; she is also the grassroot liaison officer of the Coalition for Gay Rights in Ontario.
Sitting to her right is Paul-Francois Sylvestre, who is civil servant in the federal Department of Communications and author of a number of books, included among them is Les Homosexuels S’organisent. In 1977 he was Secretary and in 1978 President of Gays of Ottawa.
To my immediate right is Mr. George Hislop, one of the pioneers of the gay movement in Canada, and the founder of one of the first community organizations in this country, and a long-time worker of the gay rights movement, and also a recent candidate in the Toronto municipal elections.
Seated to my very far right is the smiling lady in the black sweater, Monique Bell, who is a lesbian and a labourer with the City of Ottawa, and she has been associated with Gays of Ottawa and is a past President of Lesbian and Gay Men on Campus at Ottawa University.
I am member of the Executive Committee of the Canadian Association of Lesbian and Gay Men and Vice-Chairperson of the Coalition for Gay Rights in Ontario; I am a low student and expect to be called to the Bar of Ontario this spring, currently studying at Osgoode Hall.
I would like to call on Chris Bearchell to open our remarks.
Ms. Christine Bearchell (Member, Canadian Association of Lesbian and Gay Men): Good morning.
I would like to make a very brief, general remark to you and then allow the other members of our delegation to take up some specifics.
When I first mentioned to a friend that I was going to be appearing here today, she made a suggestion to me which I was very tempted to take up, but did not, you will be relieved to know. The suggestion was that I should take pink triangles and distribute them to each of you. Well, I have not been able to do that. I have been, however, been able to bring copies of the Body Politic which is the national publication of the gay movement in this country, and I have extra copies which I would like to leave here for people who would like to look at them.
One thing this publication will give you is a sense of the breadth of the gay community across the country, and I would particularly like to draw your attention to page 44, which is a two-page listing of the organizations which are a part of our community,
However, back to the Pink Triangle.
Why on earth would this friend of mine make such a peculiar suggestion? Many of you are no doubt very much more aware than I am of events earlier in our century that led up to World War II, the devestation of Europe, the incarceration of hundreds of thousands of people at the hands of fascism in concentration camps. Many of us are familiar with a story about Denmark, about how, when the Nazis were advancing on Denmark and making threats upon the Jewish people of that population, the King of that country put on the Star of David and his countrymen did likewise in a very brave and very thoughtful move to defend members of that population that were the most threatened and the most beleaguered.
Well, the Pink Triangle is a symbol to the gay community. much the way the Star of David is a symbol to the Jewish people. and in fact it comes directly from the experience of our century and of World War II, and it is very much a part of the history that is being recovered of the gay community. The Pink Triangle was the symbol that was used to mark homesexuals who were incarcerated in those very same concentration camps under fascism.
Now, my friend’s suggestion to pass these pink triangles out to you, to ask you to wear them as a symbol of solidarity with the human rights of one of the most beleaguered minorities of our country. I think was a very good one but maybe, perhaps, a bit idealistic. I have not done it and in some ways I am kind of sorry that I have not, but I would like to explain that I was not really optimistic about the chances of getting your support for that kind of a move and the reason is because human rights has ceased to be the kind of issue of morality and justness that it ought to be and has become basically a political issue, and I would like to urge you to put aside political considerations when discussing the issue of human rights.
It is a bit of a serious charge to say that members of our legislative bodies have in fact done this and it is not a charge
that I lay before you lightly, but I am making it a serious charge, I am making this, in fact, serious charge because the issue of human rights is a serious one.
Now, I know many of us feel very fortunate to live in the kind of country we live in today, to know that we do not face the kind of brutality and violence and genocide that the Jewish people of Europe were subjected to, and many others who faced fascism at the time. However, I say to you that there were many people in Europe and many people in Germany, in particular, who, prior to that episode, that very shameful episode of our world history, did not think it could happen there. I say that there are probably many people throughout the history of our world who have thought that it cannot happen here and as much as I would like to feel that about our country, those kind of sentiments, that kind of goodwill, is not really in the end, enough to protect human rights. Human have to be codified, they have to be made as broad, as widely understood, as widely protected as possible.
So it is a serious charge and it is a serious plea that we are making to you to see that these rights are codified, not just for certain sectors of the population, not just for those most popular, not just for those most likely to win us votes, but for everyone in our Canadian society and in this case, for one of our more beleaguered minorities, for the gay and lesbian people of Canada.
So I would like to turn the microphone over to Paul-François Sylvestre.
Mr. Paul-François Sylvestre (Canadian Association of Lesbians and Gay Men): Chris Bearchell offered you a fairly dull image of our history. There has been progress made, timid in some cases, encouraging in other cases.
It is true in 1969 the omnibus bill decriminalized the sexual act between two individuals of the same sex, in private, provided they were over 21 years old.
It is also true that in 1967 the Immigration Act was amended in order not to forbid the entry of gay people into our country. But this does not concern us that much, it concerns more these who want to come into our country.
Quite often, and wrongly so, we hear it being said that the people are not ready for a change in the law, that the attitudes have first to change. We also hear it being said that people are not ready to accept that gays and lesbians be protected against discrimination, as far as employment, housing or access to public services are concerned. To sum up, some say that the people are not ready to see its governments forbid any discrimination on grounds of sexual orientation.
In December 1967, the Government of Quebec clearly demonstrated that those perceptions are far from being founded. The Government of Quebec amended its charter of individual rights and freedoms—the only government to have done so in the whole country—in order to include sexual orientation as an unfounded motive for discrimination. There has not been any opposition. The Quebec Government has not
been blamed for that. On the contrary, there has been greater justice.
Two lesbians that were dismissed by a school board could then take legal action before the courts and got a decision in their favour.
The situation has completely changed for the gay groups that, for a long time, had been refused access to public services, had been refused to publish ads in the newspapers or on the radio.
These are just a few examples of the progress that has been made.
Let me close on a more literary note. Last month, a French gay writer, Yves Navarre, received the Prix Goncourt for this tenth novel. Navarre has said:
I do not believe in a gay militancy that goes down into the streets with posters to claim its difference.
Maybe he does not feel that need because his literary success puts him clear of any discrimination but. in Canada, there are too many people that are subjected to injustices, precisely because of their difference. a difference as far as the sexual orientation is concerned.
Mr. George Hislop (Canadian Association of Lesbians and Gay Men): In the recent Toronto municipal elections in which I was a candidate there was a great deal of literature distributed by various extremist organizations in which a great deal of confusion was created about what is meant by sexual orientation. The impression that they wished to convey was one that if we include protection in Human Rights Codes or in the Canadian Bill of Rights on the basis of sexual orientation, that this would permit people to somehow break the law, to attack children, and much of this literature, of which copies will be left for you, is blatantly lying in nature, but it is designed to frighten people, not least of all you. It was designed to frighten the public, to frighten politicians and to try to defeat the aspirations of Canadian lesbians and gay men for equality and fairness in our country.
Sexual orientation does not mean sexual activity. There are homosexuals, just as there are heterosexuals. who have never had sex, and sexual orientation does not flow from sexual activity, but rather sexual activity perhaps, and indeed does flow from sexual orientation.
We are not asking that anyone be given a hunting license to prey on anyone else. We have a criminal code to protect people from unwanted, unsolicited sexual advances. We are asking for the right to privacy, and in the brief circulated to you, you will note that this is one of the omitted rights, so we would like . . .
Mr. Maloney: We understood that the brief had been presented yesterday by the person who presented from the British Columbia Civil Liberties Association. Apparently it
was not circulated so copies are now being made, we have provided an additional copy and they will be circulated to members of the Committee.
Mr. Hislop: But in the brief it talks about the need for individuals to have the right to their own privacy, their own emotions, their own feelings, their right to love. And that is simply what we are asking for.
I would like to stress that much of this literature circulated is political material hidden in the guise of religious belief, and I support whole heartedly the rights of Canadians to freedom of religion. I think we should somehow guarantee Canadians the right to freedom from religion. Much has been said about the results of the Toronto municipal election,» but the public is perhaps not ready for acceptance of gay rights. I do not believe that. If anything, I think it showed just the opposite.
The fact that l was defeated, ran a respectable third place, I think shows that many people are more than ready. In fact, a recent Gallup poll showed that 52 per cent of Canadians support what is colloquially called gay rights, where as only 30 per cent said no. The rest were undecided.
So I urge you to face this issue squarely and again recognize that we are not asking for more, we are asking for the same. We are asking for the right to be able to say without fear: I am not heterosexual.
Ms. Monique Bell (Canadian Association of Lesbians and Gay Men): [Translation] I am going to intervenir [Text] in a bilingual way since we are in a bilingual constitution. I have got about four points to make and I will try and make them short and sassy.
First of all, we are often referred to as being either cowards or flaunting it. If I wear a pin or if I say: no, I am a lesbian; they say you are flaunting it, just go back in the closet and do not bother me, you are sick. However, then if I choose to say nothing about it and somebody does find out from someone else, they say: oh, you coward, you do not even have the courage to say what you are, and here I have to find it out from your friend. And this often happens to me.
Also, something else I wanted to say was [Translation] Human rights are indivisible. However, everybody has those rights or nobody. If someone is protected, we all have to be protected for the same reason, because we are all human beings.
Sometimes also, as in our case, society is ready to receive us in most cases as George Hislop said but sometimes also the law is ready before society, as is the case maybe in Quebec. The laws change the people just as the people change the laws, and as human rights are indivisible, maybe it is time that the law respect that fact.
The last point, my conclusion, is that if we are not in the Charter of Human Rights it would simply and purely mean
that you are accepting and protecting opened and covered forms of discrimination against us.
Mr. Maloney: Members of the Committee. you have heard from four people that come before you today who are very concerned that there be some guarantee of the rights and liberties, the equality before the law, the equal protection of the law, for the gay and lesbian members of our community. A brief has been prepared which will be circulated to you, the brief is entitled the Charter of Rights and gay people, and it very simply makes a number of points.
Firstly, it talks about the size and the scope and the needs of the gay community across Canada.
Secondly, it tries to deal with the traditional arguments that are made against providing equal rights protection for gay people.
And thirdly, it goes to the specifics of the proposed Canadian Charter of Rights and Freedoms.
What are those specifics? You have heard them before from the Chief Commissioner of the Canadian Human Rights Commission who, in his presentation to you before this Committee and in the brief from the Canadian Human Rights Commission, indicated to you that he felt that the Charter ought to be amended in one of three ways: additional grounds, additional proscriptions against discrimination ought to include, among other things, sexual orientation if it was felt necessary in the Charter to list specific grounds. We take the position and we adopt the position in the brief that, the preferred position of Mr. Fairweather and the Canadian Human Rights Commission, that there be sort of a general global antidiscrimination clause, ought not to prevail.
That his second preference is our first preference, namely that there ought to be a general statement against discrimination followed by a listing of specific groups who are traditionally discriminated against.
In preparation for their position, both as regards the Canadian Human Rights Act which we will be hearing about in 1981, and in regards to the Charter, the Canadian Human Rights Commission had someone do a major study for them of the gay and lesbian community across the country, a report that is available to you all, and they followed that up by a survey of public opinion, and since we have not had, since the Charter was introduced and made public, since we have not had the opportunity to conduct subsequent opinion polls I can only argue by analogy from the opinion poll that was done by the Canadian Human Rights Commission on the question of the Canadian Human Rights Act, and to make that more specific the question that they asked the Canadian public in their polling sample was the very sensitive question dealing with national security, and it was this: they said if you had two equally qualified applicants for a position in the security service of the RCMP and one of them was homosexual, should that homosexuality be a determinative factor in not hiring the individual for the security service? So we are talking about a question to which people who are at all sensitive on this issue
would normally react in the negative. Traditionally the problem with government in regards to sexual orientation has been the security service, has been the RCMP, has been the Department of Defence, and that question was posed to a fairly large sample of the Canadian public and the response was close to 60 per cent stating that that should not be a factor in that employment.
Now, we recognize clearly that the Charter does not deal with specifically with employment and the Canadian Human Rights Act is the appropriate place to deal with that, but we argue by analogy that it is quite appropriate to take that to mean that this is supported, the question of sexual orientation and the question of protection for persons of sexual orientation other than heterosexual is now an accepted part of the thinking across Canada among a large number of people.
I would remind, of course, and perhaps it is not necessary to remind members of the Committee who have party affiliations, with either the NDP or the Liberals, that the NDP has a national policy of some long time standing in this regard as to the protection of gay and lesbian people, and secondly, that at the recent Winnipeg policy convention of the Liberal Party I presented and there was passed a resolution that went straight to that matter. It passed the convention and it was in support of protection on the grounds of sexual orientation.
I think we would like to stop there. We propose that you support Mr. Fairweather in his second recommendation, namely that there be general proscription followed by a list of grounds which would include sexual orientation.
Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Maloney. I would like to invite Mr. Svend Robinson to open this discussion in exchange with our guest witnesses.
I understand that Mr. Epp, too, has a question. Mr. Epp first, then. The honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman. Just one or two questions to our witnesses this morning.
Should the government follow your recommendation and include in its Charter of Rights the Section on sexual orientation, would your analysis of the effect of that inclusion be such, for example, that in the public school system members of your association would in fact be able to promote your lifestyle as an acceptable lifestyle to their students?
Mr. Maloney: I will take the privilege of responding first to that question, perhaps some of my colleagues would like to follow.
I think the question is one that many people ask and certainly was asked in recent discussions before the Toronto School Board when there was a proposal for a gay and lesbian liaison committee. It is a very sensitive issue, as you know, the whole issue of any kind of contact at all, intellectual or otherwise, between gay and lesbian people and children. It is a serious concern, it is a volatile issue and I am glad that you have raised it directly.
The question, though, goes to the very root of what sexual orientation is about. Sexual orientation is not a lifestyle and
we say to you, and we hope we begin an educative process across the country by so saying, that what we have been struggling to say the last decade, many of us, is that sexual orientation, if you think of it in terms of your heterosexuality, those of you that are heterosexual, if you say to yourself what does that constitute, why am I heterosexual, what does that mean, where does that spring from, and you say to yourselves, or you have taken that for granted, it is almost like a fish swimming in water takes water for granted, it is his natural environment. It would not be possible, I think, for you to turn around to me and say: ought heterosexuals to be able to go into the school system and advocate their lifestyle. Heterosexuality is not a lifestyle. There may be a variety of lifestyles that flow out of a persons heterosexuality, quite a variety of lifestyles as many of you are aware.
Similarly with homosexuals and lesbians, there are a tremendous variety of lifestyles that flow out of that. What we believe in regards to children and education, I think, is that the good of the children is paramount and the good of the children involves information and education, and the best information and the best education should be available to all of our children.
Secondly, they should grow up in an environment we believe that is tolerant towards other people with differences.
Thirdly, the concern that underlies your question, I think, is the whole myth of how do people contract homosexuality, and I would say to you that homosexuality is the mirror image of heterosexuality, it is that it comes from the same wellspring that your heterosexuality comes from. It is something that you realize at a certain point in time that you are attracted to individuals of certain sex or both sexes, a realization that each of us around this table has come to at one point in time or other in our lives and then either acted upon or not acted upon or dealt with.in a moral kind of way or an immoral kind of way, or whatever.
So what I would say in response to your question is: promotion of a lifestyle? No, I think that is not right, any more than I think that hererosexuals ought to be able to promote particular variations of their lifestyle. Rather, it ought to be a question of, at appropriate ages, at appropriate phases in peoples education as children, they become aware that people live in different situations, either heterosexual, homosexual or bisexual, that they have a morality that surrounds that and that those children then, in accordance with good educational principles, ought to be aware of, and in some cases tolerant of, and be given the equipment for themselves to decide in a rational way what is good for them as individuals.
Mr. Epp: Firstly I have to say to you I believe what you are promoting is a lifestyle, I see it no other way, and the point that I am trying to make to you, I would like to get back to the original question, and that is: what would be the rights of parents who are responsible for their children and see that responsibility exercised and who have a lifestyle that they feel is valid for their children and want to train their children in?
Inclusion in the Human Rights Act, if I understand your answer correctly, what you are saying to parents in Canada and to this Committee is that if that inclusion were placed in the Charter of Rights, in fact parents would not have the primacy control over lifestyle teaching of their children, but rather that the teacher at a certain point in time could take that right and teach children in the lifestyle that he or she have adopted?
Ms. Bearchell: May I respond to your question?
First of all, I am not of the impression that our system is one of pluralism, that our education system is one that is designed to encourage tolerance and understanding among people of differences. This country includes many, many different ethnic and cultural backgrounds, many different variations of many different kinds of lifestyles.
There are parents who feel very strongly about the kind of lifestyle education their children should receive, often particularly parents of particularly strong religious backgrounds, and they have the option of enrolling their children in schools where that particular lifestyle will be promoted to their satisfaction, but most of us have recognized, I think, that our children can be educated in a very valuable way in our pluralistic society to understand the lives and culture and the society of other people, their neighbours, their friends. In the case of gay people, often even their relatives. In fact, I would probably say almost always their relatives.
I think any of you who have contact with children at all and with the school system would be hard pressed to deny that one of the most common school yard epithets, and I am talking about being put forward by children as young as seven, eight and nine years old, are words like queer, faggot, dike. Those are really ugly words and there is a lot of misunderstanding behind those words, a lot of hatred.
Now, do we deal with that kind of misunderstanding and hatred by maintaining a veil of silence, or do we deal with those kind of things head on? Do we say to our children: we live in a pluralistic society, there are many different kinds of people in our country and in our communities and it is our responsibility as good Canadians to try and understand one another, to try and. respect one anothers differences.
Many of those children in that school system have lesbian mothers and gay fathers or gay brothers and sisters or aunts and uncles or cousins. They do not need to be internalizing that kind of hatred, that kind of misunderstanding. They need to learn about homosexuality as it really is, not as the myths and stereotypes promote it. They need to learn that from understanding heterosexual or homosexual teachers who are perfectly capable, according to professional ethics, of putting forward simple information in a way that does not violate anyone’s rights, in a way that is balanced, in a way that promotes understanding.
Mr. Epp: Mr. Chairman, I will not continue questioning, I just want to make the point that this Committee is charged with a responsibility, and if I understand the testimony of our witnesses correctly, the primary right which I feel parents
must have over their children or their childrens teaching, including the establishment of schools that want to teach a certain religious training, that whatever is done, that that right of parents and their training of their children is maintained.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp. Mr. Svend Robinson followed by Mr. Lapierre.
Mr. Robinson: Thank you, Mr. Chairman. I would certainly like to welcome the witnesses appearing before us today. I think that the fact that you are appearing before us, before the television cameras and before a Committee of this nature, is a very positive and healthy thing and is long overdue.
I also would like to say that I for one particularly commend the courage of George Hislop in running not as a gay candidate but as a candidate who happens to be gay, as I believe he said, in the last Toronto election, It certainly took a good deal of courage and I commend him for that.
I have had an opportunity to read the brief which has been submitted and I have a number of questions arising from that brief. I would just like to comment though briefly on the questions asked by my friend Mr. Epp and point out that certainly if ever there was any indication of the need for understanding and for tolerance not only at the elementary and secondary school level but certainly even at the university level I think one need only look at the recent unfortunate incident in the Province of Quebec. I believe it was at Bishop’s College at which there was a very disturbing incident in which certain newspapers were burned on the basis of the content of those newspapers. That kind of incident is a very disturbing thing and points to the need for understanding and awareness of the rights of gay and lesbian people.
Now, in your proposal, in the brief, there are a number of refenreces to the Charter and some suggested changes to the Charter and you have also referred to the Canadian Human Rights Commission recommendations. I wonder if you are aware of the fact that Mr. Fairweather, in appearing before the Committee in I believe it was 1978 on Bill C-60 also recommended that at that time there be included in the Charter of Rights a prohibition of discrimination on the basis of sexual orientation and that certainly the studies that were conducted by the Human Rights Commission following that recommendation have borne out the need for that. That is something that I think the Committee should be aware of.
Your refer briefly to the experience in Quebec and there are some who suggest, and I have heard it said, perhaps we should not include sexual orientation as a prohibited ground of discrimination in the proposed Charter because we would be imposing it on the provinces and the provinces would be unwilling to accept this.
I have a couple of questions folowing from that. First of all, I wonder if one of you could perhaps relate the experience in the Province of Quebec which has had included in its own charter of rights a specific reference to discrimination on the basis of sexual orientation and whether indeed that has caused
any problems in its implementation and also whether it has protected gay and lesbian people from discrimination.
Mr. Sylvestre: I would like to begin by saying that the amendments of the charter in December 1977 by the Quebec Government was the result of a rather long process.
Over the few years preceding this, there were a number of cases of discrimination. Quite a few gay bars were raided by the police and several groups were not allowed to place a classified ad in the Chicoutimi newspaper to announce a conference. And this is not even very controversial.
These examples of discrimination and more flagrant violations of human rights, such as when a bar was raided and 144 people who were just having a drink were taken to the police station, pushed gay groups in Quebec to put pressure on the Justice Department and I think it was the last incident—the bar raid—that convinced the Minister to table Bill 88 in December 1977.
The law was amended quite easily. There was not much criticism.
You also asked whether there were enforcement problems. As soon as the law came into force, a number of groups filed complaints with the Quebec Human Rights Commission and in most instances—l think there was only one case that has not yet been resolved—there were no problems whatsoever. The newspapers were quite willing to accept the fact that they could no longer refuse to place ads. And in the case of the two teachers who were fired because they were lesbians, the school board was told by the Human Rights Commission that what they had done was illegal and they paid the two teachers for the rest of their contract.
There was another case, which was actually rather funny. The Santa Claus Association placed an ad saying that it needed a certain number of men to play Santa Claus, but that they did not want homosexuals. They had to withdraw that part of their ad, but there was no problem.
Mr. Robinson: If I could just interrupt because the time is limited, what you are saying is that to the best of your knowledge there have not been any problems in the implementation of that particular section of the Quebec Human Rights Charter.
Mr. Sylvestre: No. No significant problems. There was a problem when the Montreal Catholic School Board was told by the Human Rgiths Commission that they could not refuse to rent space to a gay group. The board went to court, but that was the only time there was a problem. In all of the other cases. the institutions complied. The Commission recently published a list of complaints filed and the number has been
increasing every year since 1977. The number of complaints that are resolved has increased as well.
Mr. Robinson: Thank you. Just a couple of more questions if I may, Mr. Chairman.
First of all, I would like to have a response to another concern that has been expressed on a number of occasions including a concern that was expressed by the Prime Minister and that is that there cannot be protection in a federal charter of rights or federal legislation on the basis of discrimination, on the basis of sexual orientation because of the security risks involved and the vulnerability to blackmail. This has been a commonly expressed concern and I wonder if you would like to deal with that briefly, and I have one final question.
Ms. Bell: The only reason that we are blackmailed is because we are prejudiced against. If we were not prejudiced against there would be no reason for blackmail. If it was okay to be gay or lesbian, who would blackmail us? Nobody.
Mr. Robinson: Thank you. My final question if I may, Mr. Chairman, relates again to your brief and you have indicated a very impressive list of organizations that have supported the rights of gays and lesbians to protection in the law from discrimination including the Association of University Teachers, the Secondary School Teachers Federation of Ontario, the Canadian and Ontario Human Rights Commissions, the Canadian Bar Association, the Labour Congress, the Anglican Church of Canada, the United Church of Canada and of course the Liberal Party of Canada.
In view of that I assume the Liberal Party of Canada representatives on this Committee will be welcoming the amendment which this party will be proposing to the proposed Charter to make it very clear that discrimination on the basis of sexual orientation should not exist in this country any longer, either at the federal or provincial level; and that as you say at the present time there are either two options for many gay people, that either they are discriminated against or they are forced to try to escape such oppression by concealing their sexual identity and that in a democratic society, a free society, neither of these alternatives is one which should be countenanced.
So as I say I welcome you here today. I certainly give you the assurance that there will be an amendment moved to protect the gay and lesbians from discrimination and I hope that all members of this Committee will see fit to support that amendment. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Robinson.
Mr. Lapierre: I would like to joint Mr. Robinson in congratulating the witnesses on their courage and opennes, particularly Mr. Hislop, who has received a great deal of publicity and whose courage we should certainly admire.
Rest assured that your presentation will be met with respect and understanding.
I have not had as much time as I would have liked to read your brief, but I would like to go back to comments made by some of your members. You said at the beginning of your presentation that human rights are no longer an issue of morality or justice, but a political issue.
That worries me somewhat, because you have no idea to what extent members of this Committee are tortured by all sorts of notions on marality and principles of justice. If you did, you would no doubt realize that we are not only participating in the political process, but also trying to be as just and as moral as possible. This applies to all members of the Committee, who will have to vote according to their conscience when amendments are tabled. I think that it is important to remember that we are doing this with a great sense of duty.
You also said that human rights should be codified. Does this mean that you are in favour of enshrinement?
Mr. Maloney: I think our response would be yes, although the brief takes no position on that and we have no specific mandate on the question of entrenchment. It would be my impression that the feeling of our members would be that yes, we are clearly in favour of the entrenchment of a charter of rights in the constitution. You are engaged in perhaps the most historic, the most important task that a group of people have engaged in in this country for 100 and more years and I know and I share your sentiments that we come to this Committee, I think the remark was made about it being politicized, rather than being a question of moral principles or principles of justice, and I am sure that this Committee deals with it on that high level, realizing, each individual here, what a historic task you are engaged in.
Mr. Lapierre: I am glad that Mr. Sylvestre mentioned the Liberal legislation that was passed by this governement in 1969 and 1977 and I note that he also appreciated the open-mindedness that the Quebec Government showed in 1977.
I am sure all of us realize that it also takes a certain amount of courage on the part of government members.
You are asking us to include sexual orientation in Section 1 5. You are aware that many other groups have made the same demand.
In one paragraph, you say:
It seems unlikely that the Courts would interpret the right to equality as failing to protect against racial or religious discrimination, but there is a real chance that they would not interpret Section 15 as protection gay men and lesbians . . .
On what basis do you make this statement on page 22? Section 15 states that everyone has the right to equality before the law, particularly with respect to sex, but you do not find that adequate.
Is there a legal basis for this?
Mr. Maloney: The case that goes to that point in the Supreme Court of Canada is the Vancouver Sun case in which
a local gay newspaper in Vancouver attempted to place a simple advertisement saying gay newspaper, so many dollars subscription, write to box so and so; and you may be aware that the British Columbia Human Rights Act provides one of those general clauses that purports to catch all kinds of groups.
The Supreme Court very narrowly decided on that case in a way that leads us to believe that the courts of this land are likely to interpret a broad general catch-all position that does not specify particular groups in a way that would be prejudicial to gay people.
One of our concerns is of course that no matter what way you phrase such a general provision that there is always a judicial out if there is not a specific list that follows and takes over from the general.
Ms. Bearchell: In terms of the hope that the inclusion of the term sex might provide protection on the basis of sexual orientation there is a case that has been before the courts in Ontario for sometime now of a man, John Damien, who was a racing steward with the Ontario Racing Commission who was fired from his position, his employers admitted, solely on the basis of his sexual orientation and that his job performance was otherwise excellent.
In attempting to sue his employers for wrongful dismissal, John Damien approached the Human Rights Commission in Ontario to see if he was in fact covered by the provision of the term sex in that code and the court ruled that in fact he was not. that sex in that code referred specifically and exclusively to gender.
It would be nice to think that we were somehow included by implication in that, but our experience certainly leads us to believe that we are not.
Mr. Lapierre: There are other interesting points in your brief that have not yet been discussed, including Section 1, about which you are justifiably concerned. These concerns have been brought to our attention by other groups and I am certain that the Committee will take this recommendation into account. There is also the recommendation you make on page 24 with respect to a redress clause.
A few witnesses have referred to this and I personally think that there should be special access to the courts when the charter is violated, because if things took as long as they normally do, we could wait for a long time for justice to be done, Your recommendation interests me.
The only thing that bothers me a bit is that you have recommended that an independent commissioner be appointed. I thought that the legal interpretation and enforcement of the charter was to be left up to the court. I am not convinced that it would be constitutionally apropriate to appoint an independent commissioner.
I do not know whether you have really thought about this or whether you are just paying lip service.
M. Maloney: Yes. [Text] We have some difficulty with leaving it to the courts. Our experience with the courts is that litigation is an extraordinarily expensive and time-consuming thing.
Individual cases can surely be brought, but it has been our experience that most of the discrimination in this country is in fact structured and built in, as it were. One needs a more active intervention to seek out instances of discrimination and to seek redress.
Mr. Lapierre: Fine.
That is why I think we should have a redress clause which would provide for special remedy without creating another judicial or quasijudicial body, since we do have a legal system that must be respected.
Finally, there is another right that you would like to see included in the charter; the right to privacy. I find that rather interesting. It is rather new for us. Not many witnesses have asked for it and I think that what you are proposing applies not only to your group, but to all Canadians, because everyone wants this type of protection. I find this interesting and refreshing.
Mr. Maloney: Thank you very much for that remark. Our experience has been that the amount of surveillance of activity, the list collections by intelligence departments at various levels of the federal and municipal as well as provincial police forces lead us to believe that there needs to be a specific provision that we have a right to privacy which has to be overcome, if at all, by the very specific kind of legislation contemplated, for instance, in regard to the opening of mail.
Mr. Lapierre: Thank you.
Le coprésident (M. JoyaI): Thank you, Mr. Lapierre, The honourable Bryce Mackasey.
Mr. Mackasey: Mr. Joint Chairman, first of all, I wonder if Mr. Robinson would be good enough to deposit with us a document from which he quoted the remarks of the Prime Minister. I am interested in knowing whether it was taken out of context.
I want to welcome our guests today. Mr. Sylvestre reminded me of the days in another assembly in 1977 when I was a member of the Quebec National Assembly, when the Quebec Human Rights Charter was adopted. I voted for that Charter, which is an advanced and progressive one. To the best of my knowledge it has caused no political difficulty for a government.
The political reality, Mr. Hislop, is real and cannot be disregarded by would-be elected or elected officials.
I have to say to you that I have no lesson to take from Mr. Robinson in regard to any concern for people. I resent his tactic in telling you what his amendment might be and challenging the Liberals to support it.
My study of NDP legislation in the last two decades, particularly provincial legislation, is that they tend to preach one thing and when they are in power they practise another. Mr. Robinson exemplified that this morning when he suggest-
ed that the Liberal party and, by inference, the Conservative party, have no particular concern for people. Our records indicate the opposite. Any piece of meaningful legislation on the federal scene had to be made by one of the two major parties for obvious reasons.
Mr. Robinson: Mr. Chairman, I must respond to my good friend, Bryce Mackasey. I think there must have been a misunderstanding. I certainly was not intending to imply that the past records of these parties in any way indicated a lack of concern for the rights suggested in this charter,
I was merely indicating that we would be looking to the future with great interest to see that that past record indeed is continued.
Mr. Mackasey: Just on that point, I would like to say that is not the way it came through. I have been in this game for a long time. What you were planning, Mr. Robinson, was the inference that if we could not support the amendment for any reason, somehow we were reactionary and old fashioned in expressing a point of view which needed to be drawn to the attention of the public. But I would like to move from that. We will drop that for a moment, although I am perfectly prepared to continue; but I do not think the witnesses are particularly interested in witnessing what happens when a young, rising star clashes with a fading personality.
Mr. Maloney: I doubt very much that any of us would consider you, Mr. Mackasey, a fading personality.
Mr. Mackasey: Well, with a name like Maloney, you had better not.
Mr. Chairman, I would like to say to you that perhaps page 18—probably 19—should almost be required reading. Perhaps it exemplifies my whole approach. You are saying that the majority does or does not endorse homosexuality as a way of life. Frankly, I do not. I am sure that it does not shock you when I say that.
But I think you are equally correct in saying that the public generally accept the principle of supporting the rights of a minority. I regard your community as a minority. Minorities do have rights. I think Mr. Epp probably reflected the problems many of us have around this table in weighing individual or minority rights, particularly individual minority rights, if you like, with the problem of collective rights.
I do not regard your brief or representation any differently, nor do I think you want it to be discussed any differently, from briefs which came from other minority groups, be they the native people, to which you have referred very feelingly, or the Métis or the Franco-Manitoba minority: minorities must have rights.
It is a test of the degree of civilization of any country as to how the majority handles and protects minorities in society.
I think this is quite apropos.
My problem comes back to one Mr. Epp touched upon very briefly, that is, of course, that there are such things as collective rights. When he got into the field of education, the lifestyle, what rights do parents have to impose, if you like, their lifestyle on their children. Obviously, one of the tragedies in this country with families is that they tend to hand down
their prejudices, and quite often those prejudices remain forever; sometimes they are strengthened in the school system. Some people, fortunately, shed those conditionings, while others never do.
But I wonder what protection you have, for instance, in the United States, and how that is working out? What progress is made there in the whole area we are talking about today?
Ms. Bearchell: May I address a general comment to your question. In the matter of families and the right of families to influence the lifestyle of their children, it is a very complex issue. Much has been said that implies that the gay community somehow poses a threat to the family. As I say, it is complex, and I do not propose to go into a lot of details as to how I feel about that allegation.
But I would like to point out one thing. Statistically, I do not believe there is a family in this country that is somehow separate from or which is not affected by the existence of homosexuals; if the statistics are to be believed at all, there are gay people in every one of your families.
I think that many of the problems that gay people face because of many of the problems we have talked about here today, come about because they are not secure enough to let people, even those who are closest to them, their own loved ones, know in fact who they are.
Mr. Mackasey: I do not propose to cut you off. But there is another point I would like to bring up. I think you will agree with me that this is an attitude which is wrong. and my dilemma is, how do we rectify that other than by education. How we can reflect it, for instance, in a bill of rights?
I could see the practical applications of entrenchment of rights. But I cannot see all the entrenchment in the world changing attitudes. It has to come from education.
Ms. Bearchell: Certainly, but there is a role for leadership in the provision of that type of education, especially in the area of human rights which is a very simple place to begin; because as you say, supporting human rights is certainly not the same thing as accepting or understanding our lifestyle.
But in my opinion, it is a good beginning, a good common ground upon which many people of many different views can stand. It is a good place to start taking a stand.
Mr. Hislop: And I would like to add that the phrase “promoting a lifestyle” was used, which suggests highlighting or something.
We have proposed here protection in the bill of rights on the basis of religion. In Ontario there is a controversy going on in the school system. because teachers in the Catholic system have either divorced and remarried, or married a divorced person. This is in opposition to Catholic teaching. There is a controversy as to whether the teacher can stay within the school. because standing in front of the classroom, he or she is a contradiction of the teaching of that school’s system.
So I think there is a parallel here. If anybody is promoting something, whether it be a political interest or a business interest in the classroom, that is not acceptable. But I do not think we can deny people the right to a state of being.
I would also like to point out that there is an inference here, too, that lesbian and gay men are single people. The majority of us are married people. We live in heterosexual relationships, and many of us have children and do not like what is being said about us in the school system. I think we have a right to have the other side of the coin expressed in the school system.
Mr. Mackasey: Well, certainly, expressed; but not in the school system.
Now, I would like to cut that one off again. Because that tends to lead right into the Catholic system—and I am a Catholic, a former head of the PTA and all the rest of it; and this is one of the collective rights we have to wrestle with, but not limited particularly to a gay right. I mentioned the Catholic Church and the Catholic trustees because they were here, and I look for some assurance, I suppose, that we do not open the door to other threats that they, rightly or wrongly, see to the conventionality of their system. Ironically, there is no mention of gay rights in their brief.
But I have gone past my time, but I would like to say that as time goes on, we are going to have to come to a conclusion that we include specifically or mention specifically all minority groups—and I consider you a minority group, no more and no less acceptable than any other minority. These are questions we are going to have to face. Do we mention all the groups, or do we leave it so wide that the courts themselves will decide. That, I think, is the problem.
Mr. Maloney: I think our response to that is that you do both. You take the second option in Mr. Fairweather’s presentation to you. His first option was a global thing with no specifics. His second option was that we should have a global statement plus specifics: the third option was just the specifics. I think you should take the second option.
Mr. Mackasey: Politicians like to have the best of both worlds. We will probably weight them in that light.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.
I see we have overspent the time we had allocated on the agenda this morning for our group of witnesses.
I see that mademoiselle Bell voudrait rajouter quelque chose. Mademoiselle Bell.
Miss Bell: I would like to say something about the school system. I guess all of you think that you come from a school
which was basically heterosexual, and that you are probably assuming that all gay people and lesbians have been brought up in gay or lesbian schools; because after all, I was brought up in a very heterosexual community, and my parents cried or joked about lesbians and all that other stuff, and my sister still does. So, how come I am not heterosexual?
For instance, in the movies, all the kissing and sexual petting is entirely heterosexual; the books are heterosexual, the teachers are heterosexual, because even if they are gay, nobody knows about it; if they are alcoholics, nobody knows about it. If they are having an affair with somebody else, nobody knows about it; so how come I turned out to be gay? No teacher was there, either flaunting herself with her girl friend in the middle of the classroom, or there was no teacher having his boyfriend having a petting session in front of me. So I do not understand what all the fear is about that.
Mr. Mackasey: There is no fear on my part; nor are you telling us anything we do not know.
Thank you for your initiative in bringing the whole thing out of the closet. For anybody who wants to inform himself or herself today on the problems of your particular minority and any injustice over many generations to your particular minority the information is all there. I just do not think you should protest too much.
So, we are regarding you in the same way as the Métis or any other minority which comes before us looking for some protection as a minority against the insensitivity of the majority: no more, no less.
Miss Bell: I agree with that.
The Joint Chairman (Mr. Joyal): Thank you.
Mr. Maloney: Thank you very much, monsieur le co-président. We very much appreciate the time you have given us for the expression of this issue. It is one which is very important for us as individuals; it involves our identity as it did for many of the minority groups which have come before and which will come before you. We very much appreciate the time that you have given us.
The Joint Chairman (Mr. Joyal): I would like on behalf of the honourable Senator Hays and honourable members of this Committee to say to you that I would put a reservation on the last statement made by the honourable Bryce Mackasey. I would not like to leave you with the impression that we consider you as the Metis or other group that we have had an opportunity to hear.
I think the citizens who come to meet and discuss with us the very importance of a new constitution, we try and invite and approach them on the basis of exactly the same kind of rights and personalities that each member has around the table. That I wanted to clear up.
I would like to quote or refer to a sentence coming from Plato, the great philosopher, who stated very well the principle on which we have to work in this Committee, which is that the freedom of an individual is limited where stops the freedom of another one. La liberté d’un individu s’arrête là où commence celle d’un autre. That, I think, is very important. You will see around this table that it is a pluralistic Committee in terms of membership. Some adhere to different religions; some have no religion at all: it is part of the Canadian fabric.
What we try to do is to create a constitution which would allow each individual, each religion, and people who have no religions at all, but with different morals than those expressed by the traditional religion, to live in a country where we think we could have the greatest freedom in the world. That is our objective, I am quite sure it is shared by all honourable members of this Committee.
Thank you very much.
The meeting is therefore adjourned until 3:30 this afternoon when we will be hearing the representatives of the Canadian Association for the Prevention of Crime.
The meeting is adjourned.
The Joint Chairman (Senator Hays): I would like to call the meeting to order.
This afternoon we have the Canadian Association for the Prevention of Crime represented by Professor Sussman, and I will ask Professor Sussman to introduce his colleagues and after having done so perhaps one of your colleagues would make an opening statement and then members of the Committee would like to ask you some questions.
Professor Fred Sussman (Chairman of the Committee on Legislation, Canadian Association for the Prevention of Crime): Thank you, Mr. Chairman.
I would like to introduce Mr. Frank Chafe, President of our Association, on my left who will make the introductory statement.
Mr. W. Frank Chafe (President of the Canadian Association for the Prevention of Crime): Thank you, Professor. Mr. Chairman, members of the Committee.
I am here in my capacity as President of the Canadian Association for the Prevention of Crime, and the presentation of the Association will be made by Professor Sussman, who is the Chairman of our Legislation Committee, and by his colleague Mr. Tadeusz Grygier who is a member of that Committee.
I thought I might as an opening statement indicate to the members of the Committee who we are in terms of the Canadian Association for the Prevention of Crime, and it is stated very briefly in our submission where it says that the Canadian Association for the Prevention of Crime is a national voluntary body with the twin objectives of reducing the crime problem and promoting good criminal justice services for all Canadians. In our preventive role we are interested in all
sections of the proposed Charter that have implications for improving the lot of Canadians who suffer under social handicaps. However, because of time pressures, we are limiting our presentation this afternoon to your Committee to those sections of the proposed Charter that deal with legal rights.
I will ask Professor Sussman, who is a Professor at the law school at the University of Ottawa, to make the presentation on behalf of the Association in that narrow term of reference, and ask Mr. Tadeusz Grygier, who is Professor emeritus, at the Department of Criminology at the University of Ottawa to supplement the presentation by Professor Sussman.
Thank you very much, Mr. Chairman.
Professor Sussman: Thank you, Mr. Chafe.
The Association’s presentation is quite brief. We agree with all the provisions of the proposed legal rights with the exceptions which I will now outline. A further exception which must be stated preliminary and necessarily is that we disagree with Section I which would subject all the following rights and freedoms “to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”.
To us that is a contradictory statement. It raises the notion of Parliamentary sovereignty and the notion implicit in the Canadian Charter of Rights and Freedoms is the subordination of the Parliament and legislatures to the Charter.
We do not think that our proposed Charter should begin with a section which might, under certain construction, go so far as to substantially eviscerate the succeeding rights and freedoms that are so nobly stated and therefore we suggest the deletion of Section 1.
Our next point is addressed to two Sections of the legal rights, Sections 8 and 9, and a portion of Section 11, that is to say Section 11(d).
We support the intent of these Sections which in their various terms is to make arbitrary government action inadmissible. However, we are of the opinion that the following phrase which appears in all of these Sections, that is Section 8, Section 9 and Section 11(d) should be deleted because it would make these Sections meaningless. The language I refer to is “except on grounds, and in accordance with procedures, established by law”.
Now, at this point I must attempt orally to amend the written brief which we have submitted because we note that it is defective in not suggesting what language should be substituted, and to take what we have just said literally would be impossible.
We suggest that the following language be inserted: in Section 8, the language “arbitrary or unreasonable” so that the Section would be amended to read “everyone has the right not to be subjected to arbitrary or unreasonable search ,or seizure.”
In Section 9 the words “arbitrarily or unreasonably”, so that the Section as amended would read “everyone has the right not to be arbitrarily or unreasonably detained or imprisoned”.
Section 11(d), the words again “arbitrarily or unreasonably” so that in the relevant portions the Section would read
“anyone charged with an offence has the right (d) not to be arbitrarily or unreasonably denied bail.”
With specific reference to Section 10(b), where we approved this Section, we suggest that the right to free legal aid be available to the accused with insufficient financial means in criminal proceedings. We are aware that present legislative provisions and arrangements with federal government support by agreement with the various provinces in support of the legal aid schemes in the various provinces have the effect of making legal aid presently generally available and we would like to see that availability entrenched so that it could not in the future be removed.
One additional point with regard to Section 11(d) which has already been discussed, from a different point of view, and that is that we would suggest adding the concept of release on own recognizance to the concept of release on reasonable bail. So that combining the two ideas now, we suggest that some such language as the following should be the amended version of Section 11(d): Anyone charged with an offence has the right (d) not to be arbitrarily or unreasonably denied bail or release on his or her own recognizance.
With respect to Section 14, which provides that a party or a witness in any proceedings who does not understand or speak the language in which the proceedings are conducted has the right to an interpreters assistance, we suggest that by way of clarification the right to an interpreter, at least in criminal proceedings, should involve no cost to the party or witness concerned, and that that right should be entrenched.
We assume that that is the intention of Section 14 with respect to both criminal and civil proceedings, but in our view it would be helpful to amend the Section to clarify it, at least in reference to criminal cases so as to entrench that right to an interpreter.
With regard to Section 26, which provides that except as to Section 13 no provisions of the Charter affects the laws governing evidence admissibility or Parliament or legislative authority to legislate in reference to that, we note that the Section does not entrench any specific or general right and we suggest, therefore, that it has no place in this Charter of entrenched rights and should be eliminated.
Finally, and here again we take the opportunity to amend the written presentation which we have offered and which we must subsequently amend in writing, we note the omission of any enforcement provision. We believe that this is serious omission, we believe that to allow the enforcement of the entrenched rights to depend upon their attempted contravention in legal proceedings is insufficient and that a fully effective charter should have a remedies provision and in substance we suggest that an enforcement provision be added which would make it possible to have a court order, mandatory or injunctive, to enforce the entrenched rights and in appropriate cases also there should be provision for monetary damages for their contravention.
Finally, and to conclude the presentation, we believe that the proposed entrenched Charter of rights will constitute, as we say, an historic step in strengthening the rule of law in Canada and in the protection of the rights of individual Canadians. We note additionally, and we think this is important, that if properly amended the charter will bring Canada in line with an important treaty, the International Covenant on Civil and Political rights of 1966, to which Canada is a signatory.
That concludes the presentation, thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Professor Sussman, and I shall go now to Senator Roblin.
Senator Roblin: Thank you, Mr. Chairman.
I welcome our witnesses here today and I would tell them that they have joined a very long list of distinguished contributors to this discussion that do not like Section I of this bill, and I take it from what you say that unless Section I is either deleted or amended so that it is completely unrecognizable in connection with its present form, that the bill of rights would be seriously flawed as a device to protect the people of Canada.
I think it is an important point you are making because one of the fears I have is that after we have, if we do proceed to the point where we do have an entrenched bill of rights of any kind, the question of disillusionment on the part of the public may be a problem because I think too many guarantees are held out or thought of in their own minds that perhaps will not be realized when the actual bill is before us because we have seen what happens to bill of rights even with the best of intentions.
One of the things I think the public would be interested in, however, is this point, that they want to be protected, I suggest, not so much from the lawmakers whom they can get at through the normal political process, as from the bureaucracy and the administrators, and I think one of the points that you seem to be hinting at in your recommended changes to the legal rights and other parts of this bill bears on that point.
Would you like to make any comment as to whether that observation has got any validity or not?
Professor Sussman: Well, just in response to the question, I am not sure whether it is within the mandate of this delegation, but speaking for myself I would say that it is clear that, from the phrasing of the Canadian Charter of Rights and Freedoms, that everyone has the right to, that is the general phraseology, and Section 26, I believe, or is it Section 29, provides that the Charter is effective against governments, the federal government and provincial governments.
One of the reasons I believe that we feel that this is a strong Charter with the deletion, as you mentioned, of Section I, is that it constrains not only parliament and the legislatures, but also the government. It goes with this general language because of the specific section which says that it is binding upon the governement, and I would construe that to mean that it would bind not only the legislative arm of each government but also all other arms, including the police.
The Joint Chairman (Senator Hays): Did you want to add something Mr. Grygier?
Mr. Tadeusz Grygier (Member of the Committee on Legislation, Canadian Association for the Prevention of Crime): Yes, I want to make a few observations.
A Charter of Rights and Freedoms in one form or another is characteristic of nearly all constitutions I know, the exceptions being, oddly enough, France and Australia, just as most countries have constitutions with the exception of Andorra and San Marino.
The phrases which we have criticized recur again and again in the constitutions and make these constitutions meaningless. We are unanimous in this. but I have to admit that other constitutions contain very similar phrases.
The last remark, again confirming I think what has just been said, I interviewed a number of offenders in various prisons in Canada, they are not afraid of either constitution or lack of it or of any laws, they are afraid of bureaucracy. That is a completely justified remark. They are spontaneous about it and leave no doubt whatsoever.
Senator Roblin: I think I might go a bit further and say not only people in prisons are afraid of bureaucracy, but some of our law abiding citizens sometimes rub shoulders with the bureaucracy in a way that they do not very much like, and I must say they have my full sympathy.
Going on to the points that you were making, you suggested that Section 26 be deleted. Now, that is the one which has to do with the admisibility of evidence. There have been some representations made that instead of deleting it, we ought to strengthen it so that we make it quite clear that evidence that is obtained in an illegal fashion is not admissible in court and there have been two points of view suggested:
First, that we should leave it alone and let the courts decide what is admissible and what is not, and the second is that we should strengthen it to make it much clearer. You take the view that we should knock it out altogether.
Would you still think that the best plan or do you think that there should be some rules about the admissibility of evidence?
Professor Sussman: Well, if I may answer that, I think the best plan is what we have suggested in our written brief, namely to delete it entirely, but I would make this observation, that to my mind the present phrasing of Section 26 allows for development of the law and interpretation of the general language of the Charter by both the courts and the legislatures and the Parliament. The language is that it shall not affect the law, that is the Charter shall not affect the law, and that is, to use a legal phrase if I may, I interpret that to mean exproprio virtori, by virtue of its own force.
However, I see no reason why the courts could not change-I believe the reference, because I must admit that I have followed the testimony here to some extent, the references to the fruit of the poisoned tree doctrine, and the Supreme Court
of Canada, for example, has recently recognized its own power to change its mind and not be bound by its own prior decisions.
Since the admissability of evidence illegally obtained is under a ruling of the Supreme Court of Canada, I think the court is left free by this provision to change its mind and the legislative arm, both divisions of government, are also free to change their minds, and I think that that means, if I remember the phrase, that there is no entrenchment of what we may feel is the wrong rule. That is open to be changed by the courts and by legislatures.
However, we still think that removal of the Section is the best.
Senator Roblin: Well, that would certainly produce the flexibility that you are looking for.
Another point is that one of the traditions of our constitution, I suppose, is trial by jury, and I recognize there are changes taking place in the legal perception of the application of trial by jury to different kinds of events before the courts, but it has been suggested that that is a right that ought to be entrenched or ought to be referred to in this constitutional document.
Do you think that is the case or are we just as well advised to leave it out?
Professor Sussman: Well, once again I must say that I speak for myself, and I take it that it is well understood that I am, in attempting to answer your question, I am not voicing the view of the Association but simply a personal view. I would say that there is room in the interpretation of the general language of the Charter to conclude that the right of jury is protected to a certain, shall we say, historical extent, even though not specifically mentioned.
One of the virtues of any general charter of this kind is that, because of the very generality of language there is great flexibility in the development of the law over decades, long periods of time, to fit changing circumstances. Personally, I would feel I would not want to constrain by specific entrenchment of a particular procedure such a right when I have faith in the courts and their ability to develop the law along rational lines, to fit the spirit of the general language and the developing circumstances.
Senator Roblin: I guess you are telling us that one of the good principles of constitution writing is not to try to pin down everything everyone can think of.
Professor Sussman: That is right.
Senator Roblin: And, rather, it is better to use a general reference to problems which permit subsequent development in the courts or elsewhere, which would enable the constitution to be a little more flexible in dealing with the changing times. That is an important observation, and I thank you.
The Joint Chairman (Senator Hays): Thank you very much, Senator Roblin.
Mr. Robinson, followed by Mr. Mackasey.
Mr. Robinson: Thank you, Mr. Joint Chairman.
I would like to start by asking you whether you would agree that, at least, as a minimum, the proposed Charter of Rights, in the legal rights section, should comply with the International Covenant on Civil and Political Rights.
In view of your observations on page 3, I take it that you will agree with that statement?
Professor Sussman: That is correct.
Mr. Robinson: Thank you.
In view of that, how would you reconcile your statement on page I, where you state:
We agree with all provisions of the proposed legal rights with the exceptions set out below.
Then you go on to state certain exceptions, with which I certainly agree, that Section I has to be changed as must Section 8, Section 9, Section 11(d), as you have verbaly indicated, and I think those are reasonable and sensible proposals. Then you make certain other recommendations.
However, the International Covenant also contains some provisions which I believe should be incorporated in this. Perhaps you might like to comment on them.
The first is the absence of any reference in the legal rights section of surely what is a fundamental right, that is the right on the part of the person who is accused of a crime to remain silent.
I would assume you would agree that that right should be included in the proposed Charter of rights?
Professor Sussman: Once again, this is a personal reaction. I am aware of the constitution of the United States and its Bill of Rights being an entrenched bill of rights, and that it specifically mentions the privilege against self-incrimination.
I would feel that the Canadian tradition, or shall I say, the Anglo-Canadian tradition, does not go so far. Once again, I think, similar to my reaction with regard to the jury point, it would be better to leave the language in its generality, and I believe the generality of the language would permit the development into such a position if the courts, on the basis of experience and so on, come to feel that is the only way of properly implementing the general language of the Charter.
Mr. Robinson: Professor Sussman, could you point to any specific instance in Canadian history, certainly Canadian common law history, in which there has been even a whisper of a suggestion that a person accused of a criminal offence does not have the right to protection against self-incrimination, a right which has been recognized in the International Covenant at Article 14(3)(g), in the following words and I quote:
…not to be compelled to testify against himself or to confess guilt.
I am a bit surprised to hear you suggest that perhaps in the Canadian common law tradition that is not a right that Canadians hold very dearly.
Professor Sussman: I think there is a semantic difficulty here. I think we had better be more precise. I understood what you meant by entrenching the privilege against self-incrimination as an interpretation of the International Covenant, what is colloquially known in American constitutional law as the right to take the fifth; in other words, that any person may refuse to answer in a criminal proceeding on the ground that his answer might tend to incriminate him.
However, it is well recognized in Canadian law, and I understand it-and I might mention in passing that I am not a professor of criminal law, though I have something to do with criminology at law school—that is a person is compelled to answer under Canadian law, and that is the Canadian tradition under the present Canadian law, except that his compelled testimony may not be used against him.
Mr. Robinson: Mr. Chairman, I thank the witness for that answer, because with the greatest of respect to the witness, that is not the position in Canadian criminal law with respect to persons who are accused of crimes. There is no compulsion whatsoever to test if against oneself, and I also thank the witness for clarifying the fact that his expertise is not in the area of criminal law.
In view of the fact that the witness has spoken in his personal behalf, I wonder, for the record, if you might just indicate what your area of expertise is?
Professor Sussman: Well, I have a certain amount of general expertise on the law. I am a former American lawyer—I am still an American lawyer in the sense that I am a member of the Bar of the State of New York. I am a Canadian citizen and have been since 1973, and I am a member of the Bar of Ontario.
I have a general knowledge of the field, not so much of criminal law, but of criminoly, and I have written a book on juvenile delinquency, as well as a general book on the law in Canada.
I teach a course called Introduction to Law. My particular specialty has been in teaching law school in the field of tort law, and also corporation law, and by virtue of my writing, I ahve a general knowledge of many fields of law, including constitutional law—and I am referring specifically to a book I wrote called the Law in Canada, a Citizen’: Introduction, the Canadian Legal System. However, I disclaim particular expertise in the field of criminal law. I might add that I have been Chairman of the Committee on Legislation of what was then the Canadian Criminology and Corrections Association since 1968, and since that date, as such Chairman, have been engaged in many detailed critiques of proposed legislation and many affirmative suggestion for improvement of Canadian criminal legislation.
Mr. Robinson: Thank you, Mr. Chairman.
In view of that comprehensive answer, I will restrict my questions to the official positions which have been taken by the Association.
I would refer to Section 26, the comments which have been made on that Section, and the suggestion has been made that that Section should, in fact, be removed from the proposed Charter and that that would leave the courts a discretion, and I understand you to be saying, to exclude evidence which brings the administration of justice into disrepute.
How would you square that suggestion with your suggestion that there should be a remedies section—a suggestion, by the way which I think makes emminent sense—if there is to be a remedy section for breaches of the proposed legal rights section of the Charter, surely that remedies section would confer upon the courts some discretion to exclude evidence which has been obtained in a manner which violates specifically the proposed legal rights contained in the Charter. That is my understanding of the purpose of a remedies Section.
Professor Sussman: The remedies Section, as I recall the terms in which I phrased it in suggesting it, would be a remedies section which would provide, in effect, for a court proceeding which would seek as a remedy mandatory or an injunctive order of the court, or in particular cases, would make provision for damages.
That, I think. you can see is an entirely different matter from the exclusion of evidence, for example, which may be described as the fruit of the poisoned tree.
Mr. Robinson: In view of that, I would say that there are those who believe—and I do not believe there has been any suggestion to date that a remedies section should not provide remedies for breaches of the proposed legal rights contained in the Charter.
Would you agree, then, that by merely deleting Section 26, unless the Supreme Court of Canada reversed its position, a course of action which they do not take lightly, that the situation in Canada would remain, to the best of your knowledge, speaking now on behalf of the Association, that evidence obtained would be admissible if relevant, even if that evidence tended to bring the administration of justice into disrepute?
Professor Sussman: No; because it is open to the relevant legislatures and in criminal legislation, assuming that the constitutional division of powers remain the same in that respect, it will be the Parliament of Canada—your question was on what assumption? Was it on the assumption that the Section were deleted?
Mr. Robinson: The law will remain the same. Assuming that the Section were deleted and there is no indication that Parliament intends to move on this, the state of the law would then be that the evidence would be admissible as long as it is relevant, would it not?
Professor Sussman: In the immediate moment, yes. The Charter speaks for a stretch of time reaching into the indefinable future.
The point is that one can anticipate the future. One believes that Parliaments may develop differences of opinion from their present position, and courts may, too.
Personally, I am one who believes that courts particularly tend to rise to the height of the document that they are called upon to interpret.
Mr. Robinson: That is my concern, Mr. Chairman, Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Robinson.
Mr. Mackasey: Thank you, Mr. Chairman.
Professor Sussman, I was hoping that when you outlined your experience for the Committee, that you were able to say that you were not a lawyer; but of course, you are. I say that as one who is not.
Mr. Chafe and I are laughing because he was one of the more prominent commissioners on the Unemployment Insurance Commission. I do not think he is a lawyer, but I do know that most people who had to go before the Commission for justice or the interpretation of some matter were glad to have Frank as their spokesman because he knew more about that piece of legislation than the Minister who framed it and was often accused of not having read it, and having read it not understanding it.
I must admit that legalese confuses me to a great degree, and I have always found common sense to be a better alternative. I was quite impressed by your contribution, and also by your impeccable credentials.
I think we are lucky that you opted for Canada and did not elect to remain in the United States.
Section I bothers your organization, of course, and I think you will realize from following the Committee, that it bothers all of us, and that the government has made it very clear to all of us that we do intend to rectify that situation either by rewording it or perhaps even eliminating it, and I do not pretend to know what the Minister has in mind.
But certainly you have quite properly pointed out to us in language that that layman can understand, people like myself, that that limitation clause would make the rest of the package pretty superfluous.
What is bothering me, gentlemen, is the desire, perhaps because of the eloquence of many of our witnesses, to enshrine everything but the kitchen sink in the constitution in the hope that everybody would be included because they feel they have to be as individuals, but, at the same time very much concerned about the apparent contradition between collective rights and individual rights. This seems to be growing in the last few weeks. I am just wondering how this would be handled in the United States. I am thinking about the individual rights as opposed to religious rights, the rights of catholics, menonite rights, groups who, rightly or wrongly, think that collectively they have to at times infringe upon what appears to b individual freedoms.
How do we resolve that dilemma in the constitution? Do we leave it entirely up to the courts?
Professor Sussman: Well, of course, you realize in asking that kind of question that we are definitely beyond any mandate in speaking for the Association.
Speaking personally, I would say the issue of collective rights as protected by the constitutional protection of freedom of association, as far as freedom of religion is concerned, it is protected by the wall or quasi wall between church and state.
Those of us who are familiar with the problems of international protection of civil and political rights, are aware that this issue is quite important on the international scene, because the nonwestern world does not see the problem in terms of protection of western individual rights. They see it more in terms of the protection of collective rights.
But that is a matter which, it seems to me, is beyond the purview of our consideration here.
The tradition in Canada and the United States is the protection of individual rights, and having heard the Minister of Justice just recently via television, I agree with his statement that the Charter is concerned with the protection of individual rights.
Mr. Grygier: I would like to add to that. I would like to disagree, and fortunately this is not the position of the association anyway. This is our personal view.
The protection of individual rights is not in the western tradition. It is in the Anglo-Saxon tradition. The French tradition is completely different,
The English tradition stems perhaps mainly from John Stuart Mills who emphasized so called negative freedom, which means we are free provided we do not interfere with the freedom of others; and the French or Swiss tradition, which extends to many other countries of Europe, which stems from Jean Jacques Rousseau and his idea of general will, where we find freedom in the collectivity and nobody can be free unless he is a member of the free community, When General DeGaulle said “Vive la Quebec libre” he certainly did not mean that the Quebecois were going to be individually more free, but that they were going to be free as a new nation, whether we liked it or not, but as a collective.
Now, there is, of course, in criminal law a completely different controversy. Some constitutions specifically prohibit the application of criminal law to corporations and say that the criminal law is only personal, a personal responsibility.
On the other, there is certainly a view expressed, for instance, at a recent congress on penal law in Hamburg that corporations should be subject to criminal law, and sanctioned one way or another, lined and so on as such, irrespective of any other form of responsibility of any particular managers, directors, et cetera, of a corporation.
So that I think the whole situation is now in a flux. I would suggest that the less we say about it the better.
Mr. Mackasey: I know, Mr. Chairman, that my colleague, Mr. Allmand would like to use up my two minutes, with your permission. If he gets back to his seat, he can use it.
You mentioned Rousseau and Mill, and in a way this country has that problem, in that we are trying somehow in the constitution to reflect both the civil code of Quebec and the more traditional British system in the rest of Canada.
I believe Mr. Allmand would like two minutes.
Mr. Allmand: I just have one question.
With respect to Section 8, I have learned through bitter experience as Solicitor General, that our laws on search and seizure were not adequate, and that although there is a difference of opinion on it, that police are able to enter in situations where people did not approve, but obviously not against the law—I think I should refer to Section 8 at this point: which states, among other things,
Everyone has the right not to be subject
It seems to me that we, in order to be absolutely certain should make some reference to premises and not just the individual, because sometimes there are premises where it is not certain whether they relate in particular to individuals. We had the entry into the APLQ premises in Quebec and so on by police.
We have had other premises which were entered into which were not homes.
I think some way or other—and I would like to hear your views—there should be some reference to premises.
The B. C. Civil Liberties Association suggested that we should include the word “entry” in addition to “search and seizure” so that you could make sure that entries where no search or seizure was carried out, but let us say that photographs were taken, and observations made: could I have your views on that—and have those things set out separately, “entry”, “search and seizure” so that they are not all read together as one operation, and also including premises.
Do you mind commenting on that? And, by the way, I also took note of your other suggestion for changing that Section, but I am wondering what you think of these additions to that Section.
Mr. Grygier: May I just mention that nearly all constitutions that I have seen do have provisions concerning premises. Nearly all of them have it.
Mr. Allmand: Have the word premises.
Mr. Grygier: Not necessarily, inviolability of the home or something of that nature, but in fact what you say in essence is in the other constitutions.
Mr. Allmand: Fine, because the section as it reads now could mean just the search of the person.
Mr. Grygier: I realize that.
Mr. Allmand: Not the premises.
Mr. Grygier: I realize that.
Mr. Allmand: What about the word entry.
The Joint Chairman (Senator Hays): Mr. Allmand, I am sorry to interrupt but I must recognize Mr. Hawkes and I will come back to you.
Mr. Allmand: Fine.
Mr. Epp: Mr. Chairman, Mr. Allmand could complete his questioning and then you could recognize Mr. Hawkes.
Mr. Allmand: I have completed it. It is just that one of the witnesses would like to answer.
Mr. Epp: We should finish that.
Professor Sussman: I would like to just add a brief comment. The question takes me unawares. My personal view is that there is no question in my mind whether the word search would be interpreted to include entry on premises.
The difficulty that I see is in the use of the word everyone which suggests the individual, this is a charter to protect individuals, and the question that rises in my mind is what if you have premises which are collectively owned or possessed and do not relate to any particular individual? That I see is a difficulty but I will not attempt to solve it.
The Joint Chairman (Senator Hays): Mr. Hawkes.
Mr. Hawkes: Thank you, Mr. Chairman, and welcome.
I notice in your brief on page I that you are cognizant of time pressures. I am not sure whether you are referring to your time pressures in preparing or our time pressures in examining. but there are time pressures and I have made my point previously that I do not think they operate in the best interests of a well vetted constitution and its existence in law.
I would like to go to Senator Roblin’s starting point. You request very clearly the dropping of Section I. In that request you are really asserting that we should enshrine in the constitution of Canada some things that a single legislature cannot change and that we transfer the responsibility for defining a lot of our social terms to a collection of people called judges, in the final analysis to nine Supreme Court Judges given our current system, and in effect five out of nine of those deciding in a certain direction all kinds of definitions.
In that context have you as individuals or as a group spent any time examining two issues related to those judges; the first issue, whether or not there are implications for legal training that would be involved in this increased mandate in our society. I think of more training in accounting, perhaps for some kinds of things, or more training in social sciences on the other side, that issue.
The second issue, are these implications for the way that we go about selecting judges. and I draw the contrast with the American system where there is considerable public scrutiny of background, past performance, attitudes and beliefs, which take place prior to appointment, compared to our system
where that appointment is really done without public examination.
I wonder if you as a group would have any comment about that, or as individuals.
Professor Sussman: I could answer your question briefly by saying that no, the association has not devoted any time to these issues. I might add that the association, particularly in regard to the sentencing issue, has been interested in the problem of the training of judges once appointed in order to make uniform the considerations which apply to sentencing issues, through forums, exchange of experience and this kind of thing. I do not think I should voice any individual views on these matters.
Mr. Hawkes: You indicate basic support for the legal section of this Charter. There are eight sections under that heading and you suggest improvements or changes in five of those eight.
If you had been sitting with us over these three or four weeks other groups come with different interests in different sections, but I think the one characteristic is they all come with suggested changes in that area of this Charter which is of import to them.
The conclusion which I draw as a member of this Committee is that the wording which exists in the Charter is not very adequate. We will have a tough time selecting out of all of the variety of suggestions which have been made to us better sets of words. In some cases it might be easy and in other cases it will be extremely difficult, so we will end up with a situation where this room full of people, the 25 who have a vote on this Committee, select the words that go forward.
You have told us in terms of your ideas regarding Section I and Section 26 that you favour entrenchment, that you want that set of words, whatever they happen to be, difficult to get at in the future. That takes us to the amending part of this proposal. In one case, one way of amending those words in the future if we find them to be undesirable, is that seven legislatures carefully selected would have to approve a new set of words or a public referendum would be able to change the words in this Charter. I am wondering if, as an association, you think in particular the public referendum way would provide the kind of protection for the words that you seem to be saying is important to us in terms of your decision regarding Section I and Section 26.
Professor Sussman: The Association has no views on that matter.
Mr. Grygier: I may make some comments on this. Some constitutions seem to have no amending formulas whatsoever. One known to me actually says it is irrevocable, but it has just been revoked. Most do have amending formulas. Usually that means that the constitution can be amended by three-fifths of a vote of both Houses of Parliament if there are two houses, or of one House of Parliament if there is only one house, and sometimes added to this is a referendum.
The only reference to something corresponding to our provinces is in Australia and these states or territorities, here provinces, do have the right to vote on constitution but in proportion to the number of inhabitants, and it is not their governments that have the right. it is the electors. So that in fact amending formulas in the existing constitutions are relatively flexible.
Before the war when I was a young lawyer I was acting as both a criminal and a constitutnal lawyer and I was drafting constitutions at about three a week. The most difficult thing for me was to convince the client that whether I am an expert or not I cannot possibly write a constitution which is so perfect that it will not be amended and that we have to make an amending formula that will make it absolutely possible in all circumstances to amend the constitution, that there will be no possible blocking.
Having a constitution which in fact will be blocked such as even simple majority but with a certain number of people present may mean that you will never be able to amend the constitution because people simply will not come to the meeting. So whatever happens to our deliberations here, whatever legal rights we entrench right here, the most important thing is we should not be specific, we should be flexible, and we should have a proper amending formula so that we could go with the time and not stay put where we are even if it is 1980.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes.
Mr. Lapierre: I am quite happy to have this opportunity to put some of my questions to specialists like you but before doing that I would like to come back on what Mr. Hawkes was saying when he was complaining about repetition and the drafting problems that we have at each meeting of this Committee. I see here that repetition is not to be found so much at that level but rather at the level of the questions being put and in so far as the Supreme Court is concerned I would advise him to realize that that is one of the reasons for which we did not want to carve the present Supreme Court in rock.
Some organizations such as the Canadian Bar have made representations and you must have seen the constitutional document presented some time ago by them concerning the revision of the Senate and the Supreme Court and I am quite sure that both at the appointment level and the training one there will be much improvement and that is why the concerns you have concerning the Supreme Court, dear colleague, are not necessarily justified at this point in time because nothing has yet been carved in stone, and I said.
Gentlemen, in your brief, at least, you had not addressed Clause 15 and apart from Clause 1, Clause 15 is one which has inspired many questions not only from the honorable members of this committee but also from the witnesses who have appeared before us.
Have you had time to look at it and to examine it a little without necessarily taking any position as an association but rather as a specialist?
Does the wording of that clause satisfy you?
Professor Sussman: Speaking individually, I am aware of the difficulties that the United States Supreme Court has recently had to face with regard to affirmative action programs and it seems to me that in view of the fact of historical discrimination with cumulative effect over decades, sometimes centuries, speaking individually again, it is only right to make such an exception in Section 15. I do not know whether that answer your question.
Mr. Lapierre: Partially, for 15.2
Professor Sussman: But not quite, however?
Mr. Lapierre: Not quite, because Clause 15.1 is really the one which causes most concern to many groups.
Professor Sussman: Clause 15.1?
Mr. Lapierre: Yes, paragraph 1 of Clause 15 where the motives for discrimination are identified.
Professor Sussman: Discrimination, yes.
Mr. Lapierre: And it is really at that level that we are wondering, perhaps your colleague who drafted many constitutional documents could answer us, perhaps for nondiscrimination we should include certain motives or make a rather more exhaustive and open list and then put our trust in the courts.
Mr. Grygier: First, in almost every constitution there is a list corresponding partially to other lists but each list is, in a partial sense, unique. A list is never exhaustive or complete.
So I would suggest probably something rather general where there would be no list mentioning either sex, age or anything else.
My draft was written up only in English, but I do say, for example:
Discrimination could be defined as different treatment accorded individuals or groups on the basis of a characteristic irrelevant to the said treatment and this should be prohibited.
I think that would be far better. Could you imagne, for example, that I have a nose like that and I show up for a job as a telephone operator? I can speak English and French, whatever, but I am refused the job because of the shape of my nose.
What is that? Am I being discriminated against? Not according to the constitution because noses are not mentioned there!
So it would seem to me that any list drawn up would never be definite. It is much better to have specific and precise definitions rather than a list.
Mr. Lapierre: Thank you.
Professor Sussman: I do not quite agree with my colleague, personally speaking, once more because I believe that charter
is, in itself, a giant step forward. I do not think we should try to be too perfectionistic here.
I do not think we should try to be too perfectionistic here and I think that we should build on what experience we have. We have enough criticism to the effect that our courts cannot handle this kind of constitutional charter.
We have precedence in the present Canadian Bill of Rights, we have precedence in the present provincial human rights codes, which enumerate specific grounds of discrimination and there is a body of accumulated experience in dealing with those, and I think that rather than try to go too far, we are going pretty far I think with this Charter if it is adopted, We should build on that experience and not try to generalize to that degree.
Mr. Lapierre: In conclusion, I imagine our colleagues have had a foretaste of what a discussion with the experts will be.
Mr. Grygier: Certainly. There is the civil law approach and the common law approach and they are both very different.
Mr. Lapierre: That is it.
Senator Asselin: On a point of order, Mr. Chairman.
I hope that Mr. Lapierre realizes that experts are necessary! We have some here.
Mr. Lapierre: We already have some.
The Joint Chairman (Senator Hays): Yes, Mr. Chafe.
Mr. Chafe: I am just wondering, Mr. Chairman. if we are about to finish I would like to make a remark or two on closing if it is alright,
The Joint Chairman (Senator Hays): Yes, go ahead.
Mr. Chafe: I think in my opening remarks I forgot to thank the Committe for according us the privilege of being here and I assure you the association appreciates that.
Our presentation has been a little ragged perhaps because we were faced with the dilemma of having a mandate from the association to confine our presentation to the legal rights as indicated in our written submission, and that faced me with the awful dilemma of having to somewhat contain my two associates who I am sure would prefer to be let loose completely in all the areas of the constitutional discussion and get in their shots while they have the opportunity.
However, I would like to conclude by suggesting that if there are any members of the committee that wish to approach the association in terms of the association’s ability to deal with situations that have an impact on the criminal justice system particularly as it may relate to the constitution, then we would be quite willing to give any assistance you might think would be necessary. I do not think it is generally known throughout Canada that our association over a longer period of time, since 1919 in fact, has been making major representations to gov-
ernments at all levels, mostly in the area of things that affect the criminal justice system and mostly in the area of things that affect legal rights of individuals who are socially disadvantaged in one way or another, and there is quite a wealth of material available that should be useful to any member of the committee and would be happy to supply it.
Thank you very much, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Chafe. As we say on the ranch, you had them on a pretty loose rope.
I think that was excellent, your observations are, as far as I am concerned, great, and I am sure I speak for all of the Committee, and we want to thank you and Professor Sussman and also Mr. Grygier for being here. I think that yours has been one of the most interesting briefs we have had, and maybe you would like to say something.
The Joint Chairman (Mr. Joyal): Yes. I thank Senator Hays for allowing me to say a few words before you leave. I would address myself to Mr. Grygier.
In the art gallery of Dresden there is a very famous painting by Hans Menling and it is called The Man with the Nose, and when that painting was done in the 16th Century it was considered a horror, and now it is considered by all the world’s experts on art to be one of the most famous and nice paintings by Hans Menling. So I just wanted to assure you that people with some kind of nose might be considered a masterpiece of art.
Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much.
The Joint Chairman (Mr. Joyal): I would like to call now the representatives of the Canadian Committee on Learning Opportunities for Women and ask them to come to the witness table so that we might continue our proceedings with them.
The Honourable Jake Epp.
Mr. Epp: Mr. Chairman, possibly this would be an appropriate time to raise a point of order, as the witnesses are coming to the table. I do not at this time intend to pursue the point I am going to make, but I think the Committee should be aware of it and it pertains to the collation of evidence that is prepared by the Library of Parliament.
I think all of us are pleased with the work that the Library is I
doing and it is not my purpose here to criticize the work but I think, as I look down the road somewhat in terms of what we might need, there are three points that I would like to make, if I could, and I will do that very quickly, Mr. Chairman.
On page I of the collation, and for members who do not have their collation here, it is the same format in all the collation here, it is the same format in all the collations and, as you know, it is a cumulative collation, but there are three points that I think the Committee should give some thought to and I intend to raise this later, again.
The first is this: the very first sentence: “This collation of evidence reviews the comments and recommendations made by the witnesses.” It is my view, Mr. Chairman, first of all, that the collation should not only be of the witnesses, but also of the
briefs, the written briefs received by the Committee. I believe that is the property of the Committee and that collation should be there. I leave it in your hands, Mr. Chairman, whether there should be two collations, one of the witnesses and a parallel one of written briefs. but I think there should be a collation of both.
Secondly, another sentence, the comments included, “are those considered relevant to the contents”, and I have difficulty with that. Who decides relevancy, and on what basis is relevancy decided? In other words, is it not the responsibility of those doing the collation, that in relation to the sections that are in the proposed resolution, that collation is done, rather than a test of relevancy is attributed to the material given.
And thirdly, Mr. Chairman, the last comment I want to make, and that is the last sentence in the first paragraph, “Comments on the issues of unilateral patriation and entrenchment of a bill of rights are not included”. It would be my view that they should be included because, under the terms of reference of this Committee, this Committee is to advise Parliament as to whether or not to proceed.
I have raised the point, Mr. Chairman. I do not think we should take the time of the Committee; I intend to raise it in the subcommittee again, and possibly we can resolve those differences before we adjourn for this weekend.
The Joint Chairman (Mr. Joyal): Mr. Epp, I have listened to you very carefully and I would be inclined to accept all your points. I will take the necessary information from the research staff of the Library to be in a position to report to you at a later stage of our debate, maybe tonight or tomorrow morning, either before we hear a witness or after we have heard a witness, and I understand that we agree on all sides of this table to discuss that matter at the subcommittee on agenda and procedure, at our first meeting either this week or next week.
Mr. Epp: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp.
It is my pleasure to welcome on behalf of the honourable members of this Committee the representatives of the Canadian Committee on Learning Opportunities for Women. They are Ms. Mary Corkery, Linda Ryan-Nye and Monique Burchell.
As you might have understood from the previous witnesses, we would invite you to make an opening statement and after that if you are agreeable to answering questions by the honourable Members, we would be most grateful to you.
Ms. Mary Corkery.
Ms. Mary Corkery (Coordinator, Canadian Committee on Learning Opportunities for Women): Thank you.
The CCLOW is pleased to appear before the committee to express our concerns about the proposed constitutional amendment. We regret that David MacDonald of the Institute for Public Policy, and Walter Pittman of the Canadian Associa-
tion for Adult Education, who had planned to appear as witnesses with CCLOW, and who support the brief, were unable to respond to such short notice. However, they have endorsed our work.
We are here to speak about our lives and our experiences which are limited under our current constitution. The proposed constitutional amendment, as it now stands, will not ensure a change in our position. We are here to claim our basic right to learn. Women must have learning opportunities because they are our tools to build a more open future.
We wish at this time to acknowledge our support for the brief presented by the Federal Advisory Council on the Status of Women, and the National Action Committee. Our own brief is a very specific one and we will not be dealing with the same topics. We will be dealing here very specifically with the implications for women of the right to learn.
I will draw your attention to some possible confusion. We have been introduced as the Canadian Committee. We have changed our name in the process of incorporation to congress, just for clarification within our own Committee structures.
The Canadian Congress for Learning Opportunities for Women approves the concept of a Canadian Charter of Rights and Freedoms as part of the proposed Canada Act. This brief, which has the full support and endorsation of the Canadian Association for Adult Education, addresses a fundamental human right which is guaranteed neither by our present constitution nor by the proposed Charter: the right of adults to learning programs as a means to economic independence, meaningful work, and democratic participation in society.
This omission contradicts the commitment of our government as a signator to the United Nations International Bill of Human Rights, to the right to universal access to learning, including basic or fundamental stages, technical and professional education and higher education.
CCLOW is a national voluntary organization which promotes learning opportunities for women. Our organization represents the concerns of adult educators and administrators, community workers, policy makers, union representatives, and those women whe want to and need to use learning opportunities. Our members are anglophone and francophone and live in every province and territory.
CCLOW has chosen to focus on the learning needs of women because our organization is itself a response to the urgent needs of Canadian women as an educationally, economically and socially disadvantaged sector of our society. The National Council of Welfare, in its Women and Poverty report, states that 16 per cent of all adult Canadian women, or one woman out of every six, live on an income below Statistics Canada’s poverty line, and I note that that is last year, 1979. In the context of womens second class citizenship, CCLOW considers learning a vital and essential route to social change.
CCLOW’s response to the proposed Charter of Rights and Freedoms:
The proposed Charter guarantees for all Canadians democratic rights and freedoms and mobility rights. These rights and freedoms are meaningless to the 24 per cent of Canadians who lack the fundamental skills needed to exercise them, and I am referring to the latest statistics on the 1979 annual averages of over 2 million adults in Canada who are functionally illiterate according to UNESCO definition of literacy.
Part I, Section 2(b) and Section 2(c):
The proposed charter guarantees freedom of expression, particularly through the media, and freedom of peaceful assembly and association. Yet we are not guaranteed the basic adult learning, which I called functional literacy, which would ensure that we are able to be articulate, engaged participants in activities which are fundamental to Canadian society.
Part I, Section 3, and Part 1, Section 19, Section 20:
The Charter purports to enshrine the right of every citizen to vote, and the right to communicate with any court established by Parliament or with central offices of the Canadian government, in either of Canada’s official languages. It is a great irony that this charter does not consider the reality of the hundreds of thousands—in fact, as I have mentioned, we have over 2 million Canadian women and men who can neither read nor write at a level which would make this right relevant.
Part I, Section 6(2):
The Charter guarantees the right of every adult to move to another province in order to seek a job. Yet the Charter does not guarantee to every citizen the skill training, academic upgrading or other learning programs which they require in order to qualify for a job in the current job market.
Part I, Section 15(1):
This reference is basically meant to guarantee that whatever rights we are going to ask for, which is the right to learn, will be particularly viewed from the disadvantaged position of women. The historically disadvantaged position of women in Canada can be redressed only by provisions for a program of affirmative action which specifically name women as a target group.
I would like now to call on Lynda Ryan-Nye who will explain briefly our rationale for asking that the right to learn be enshrined in the Charter of Rights.
Ms. Ryan-Nye: Thank you, Mary.
We are here because we know how much difficulty women are having when the government policies are translated down into their reality, and we know, because we have tried under the present constitution, that without a guarantee of that right to learn, things are not going to change very much for us. We are guaranteed the right to participate but we are not guaranteed the learning that we need in order to take that place.
On page 5 you will see that it begins with the rationale, the implications of not enshrining this right to learn. This section is a description of the enormous gap between employment related training generally accepted as a federal responsibility, and education at the primary and secondary, and in some cases postsecondary levels. Our request is not for any change of federal-provincial jurisdiction, but for constitutional recognition of the right of adults to learn.
At this time public policy statements and formal legislation do not explicitly provide for learning as the right of every adult living in Canada. As a result, adult education services are generally provided as voluntary services, as social welfare services, or as remedial services. That paragraph is taken from Dorothy Mackeracher’s study Adult Basic Education for Women. And what she is saying is that it ends up being incidental and accidental.
The current lack of delineation of federal and provincial responsibilities has created a haphazard, unco-ordinated and, from a citizen’s point of view, inadequate and inefficiently funded patchwork of learning programs for women.
Under provincial responsibility, education as a provincial responsibility is effectively, though not necessarily in principle, defined as primary and secondary education, and those post-secondary credit programs offered by colleges and universities. Credit and noncredit programs offered by community college programs are normally on a cost recovery basis, which of course excludes many of the women and men who most need them.
Under federal responsibility, we have the training for employment and funds are provided through the Canada Employment and Immigration Commission as designated by the Adult Occupational Training Act passed in 1967. The federal government is committed at this time to economic planning which includes training geared to the most productive possible use of labour. The CEIC each year purchases places in courses at community colleges, technical and vocational institutions and trade schools. These courses include not only skill development but also the academic upgrading, life skills and language training which are necessary for the more severely disadvantaged students if they are to benefit from occupational training.
These are the areas of responsibility, not necessarily areas guaranteed at this point.
Community involvement, finally and least predictably, local and municipal boards of education may provide a variety of courses ranging from such skills as typing and cooking to regular secondary school level subjects and, though very rarely, academic upgrading.
Our experience as women is that our learning needs are guaranteed nowhere. We are lost in this chasm, this gap between the federal responsibility for training for economic development, not for our development, and the provincial responsibility for education.
Ms. Burchell: By the time I was I4 years of age, I had discovered three things which I thought were very significant, One of them was Socrates; then there was the Home Medical Encyclopedia, which I had to read in the dark: the other was the Rubaiyat Omar Khayyam and I also discovered a school called the University of Toronto where one could study these to one’s heart’s content and apparently everything else in it. I wanted to go to University but my family felt the boy in the family should go to University because one day he would have to support a family; so I was left to what was then called a commercial course. I became a bit upset, because I could not imagine myself spending my life in an office. Eventually I got a grade 12 certificate in commercial studies, I went to see a guidance counsellor and I found out there were two things I could do, which would be academic: nursing or teaching. I considered I should have an academic education. So I determined that when I had finished my grade 12 I would get a job and go to night school. I went to night school for one year and I decided it would take me until I got grey hairs by the time I finished grade 13.
So the next year I enrolled fulltime in another high school. I was considered a mature student at that time. I received no support from my parents because they felt I was being silly and redundant.
So I worked a double shift, Saturdays and Sundays in a restaurant to support myself while I went to school.
I had to do my grade 12 English all over again, because it was not adequate and I had to do math and science right from the beginning, the basic level, because the previous education I had received included no science whatsoever, and there was no mathematics, not even basic algebra; there was very little history, except for the fact that I had learned that there were two world wars.
Most of the teachers welcomed me into the classroom, except for one who was very important to me, and that was the maths teacher. They decided that starting at Grade 9 was too much for starting at the beginning, so they put me into Grade 10 and into Grade II for all of the subjects including mathematics. I was able to cope with that quite nicely, except for the maths or because when I walked into the classroom the first day the teacher said to me, “Miss Burchell, you have no right to be in this classroom. You are not adequately prepared for this work, and do not expect any help from me.”
Well. I thought I would win her over and I would be a good student and that I would ask intelligent questions. and by everything would work out; but it did not. She was very firm in her convinction that I should not be there. Along with the difficulties of not having time to study, and having to support myself at the same time, and being very upset because I was not getting anywhere with my mathematics, I spent about two and a half months there and then I left.
I went back to work and continued going to night school. By the time I was 25 years old, I took up what I thought would be a new career as a child care worker. It was an in-service training program. I thought this was my first opportunity to do
something very meaningful. I was very happy with the job and with what I was learning.
While I was there, most of my coworkers tried to convince me that I really should try to go to university to get my BA., because without it there would be no career advancement or promotion no matter how hard I had worked. My old dreams started to come back to me again.
I discovered about this time I was 27 years old then—that there were such things as government assistance to go to university, student grants and loans. Just at that time when enrollment was low in those years, they started a new program where you could start university in January under the semester system.
So I hopped into the matter in two months, as a mature student, and wrote the examinations and was admitted, and I thought I had it made and that all my dreams were finally coming true.
I spent about a year and a half there at York University. I enjoyed it very much and learned a lot. The first semester I got A’s, and the second semester I got B’s. The third semester there was the threat of failure, because I was not getting my assignments done on time, and I was freezing up and unable to write may examinations.
Only in my important subjects, the ones which were meaningful to me, where I did not think the matter was so important I did not have difficulty. So I went to see my counsellor and she talked to me a lot about my family background and suggested that I was having difficulty because I had a neurotic inability to achieve because I felt so tremendously guilty about doing what my parents did not want me to do in the first place.
She suggested that I do some type of therapy or behavioural modification in order to overcome the difficulty. This made a lot of sense to me.
Despite what she had said about my being afraid to achieve, I was desperately afraid of failing, and at that point I dropped out of university and thought I would go back to work for one year, do the type of therapy that she had recommended and start up again the next year.
By the time the next year rolled around, a year and a half, I was pregnant, and I had my first child when I was 30 years old. I devoted myself happily and completely to motherhood for the next couple of years.
By the time my child was a year and a half old his father died, and since that time I have been living on social assistance and family benefits, about $396 per month.
I takes a lot of courage and ingenuity to be able to manage on that kind of budget, so my education is actually continuing; but I have not been able to continue in quite the way I might have wished.
I thought when my child was young would have been the perfect time for me to be able to resume my studies part time; but I found I could not afford to pay for the babysitting and that there is no subsidized daycare available for part time students.
I also discovered that I could not work part time to save enough money, because when you are on family benefits or any type of welfare system. you are limited in the amount of money you can earn, and, of course, you have to pay for babysitting fees out of that. It is impossible to get ahead.
So I thought I would have to wait until I could resume full time studies. I discovered, though, just recently—my child is four years old now, and I thought this was the right time—that I am no longer eligible for a student grant or loan, because I had not been making payments while I was on welfare, and I had never thought about this; I was always going to do it and I was too embarrassed and thoughtless as to how I would get it the next month.
Because I did not inform them, apparently I am not eligible to get another student grant or loan. So it seems that is out of the question at this point.
I do not feel I can go back to work full time, the kind of work I was doing before simply because I would not be able to earn enough money to support us in a decent fashion over the next few years.
So I started looking at the other options which were available to me, junior colleges or skills retraining and that sort of thing.
I discovered some courses were specially designed for women who were on welfare. One was called Focus on Change given by the YWCA; another one by Opportunities for Advancement. The instructors all told me I was over-qualified for them and that they would not do me any good.
So then I thought about the Manpower Retraining programs. They told me I was under-qualified for them, because I did not have my basic high school science and mathematics.
I sometimes wonder what sort of hopes many of the other women I know who are on family benefits or on welfare have as single parents to achieve their educational goals when more than 50 per cent of them have a grade 10 education or less. If you like, I am over educated for my position in society at this point. I am feeling a little desperate right now. I know there must be some way to continue to get the kind of education I need for career advancement or to do the kinds of thing I would consider meaningful. But I do not know where to turn now. I feel I have exhausted all the resources.
That is my story.
The Joint Chairman (Mr. Joyal): Thank you, Mrs. Burchell.
Ms. Corkery: We have some more things to say. We certainly appreciate Monique’s sharing her experiences and asking the questions to which probably none of us has clear answers.
I would like to conclude our presentation by returning to our recommendations which are on page I of the brief which we have presented to you.
What we have presented so far are our concerns in general, our rationale, the reasons for dealing with this issue at this
time, and some idea of what it means to the hundreds and thousands of women who are unemployed, or underemployed and unable to manage to reach a level of economic sufficiency for themselves and their families.
Our recommendations are:
Whereas the Canadian government has fully supported, at an international level, the basic human right to learn-and we have documented these various agreements in our appendices; whereas in Copenhagen, July 1980, in signing the Convention on the elimination of all forms of discrimination against women, our government has recognized the potential of learning opportunities to change the disadvantaged position of women; therefore, the Canadian Congress for Learning Opportunities for Women urges the Government of Canada to ensure the realization of such commitments within our own nation through the Canadian Charter of Rights and Freedoms in the following way:
We ask you to add a new section which guarantees the freedom to learn, that is, the right of access to learning programs as a means to participation in the democratic process, as a preparation for paid employment leading to economic independence, and for more effective involvement in family and community life.
We also urge amendment of Section 15(2) so that women are named specifically as a disadvantaged sector in our society.
Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, Miss Corkery.
I would like to invite Mr. Hawkes to open the discussion with our guest witnesses.
Mr. Hawkes: Thank you very much, Mr. Joint Chairman.
I would like to take this opportunity, on behalf of members of the Committee, to welcome you. We are very pleased to see you here today.
One of the things that you do for us, and perhaps to us, on this occasion is to bring to life the reality of the consequences of constitution writing, the procedures which have existed up to this point you have identified as somewhat less than perfect, and our exercise is hopefully to make them, if not perfect, as near perfect as we can. That is as the ultimate goal.
I have the honour to be both a relatively new member of Parliament, but also at this time a Vice-Chairman of a task force of this Parliament, the Employment Opportunities in the ’80s, and we have had occasion, seven of us in this Parliament, to travel to large parts of this country and we will be doing more travelling.
We have encountered representatives of many groups, but including women’s groups, and much of what you have had to say to us today, those of us who have served on that Committee—has been said to us before in somewhat similar and in some cases dissimilar manner.
But the existence of that lack of access is at least in our minds, well documented. I am not at all sure how we translate that into the context of the constitution.
So I would like to explore a couple of questions with you. I have tried my best in the limited time available to me to go over your brief two or three times, There is one article near the back, as a consequence of the Economic Council’s 1975 examination of education in Canada, and in particular Clause 295 which is on the second to last page of your brief. I should like to read it:
The need now is to put in place greatly improved mechanisms for interprovincial co-operation, and for federal-provincial discussion and co-operation on a multilateral basis.
The reason I have identified that clause is that part of your brief speaks to the chasm, to the fact that so often the problems which individuals have in our society seem to fall between the cracks of jurisdictions or levels of government, between the cracks of programs, even within one level of government.
In that context, also, as these constitutional discussions have proceeded over a time, there are at least some governments who have indicated that their priority for constitutional revision should lie in the area of clarity, of not only rights, but of responsibilities, so that we can more clearly locate who is responsible for what.
I am wondering if this, being a five-year old statement in the sense that it came to us in 1975, whether you, out of your experience, would agree that there is some necessity, perhaps some urgency, for this kind of federal-provincial co-operation, co-ordination. working together to straighten out the situation? Do you have any strong feelings on that?
Ms. Corkery: I think we certainly would, and I think the urgency for that kind of discussion goes back to the days when Lester Pearson was preparing the Adult Occupational Training Act and was discussing with the provinces the various levels of responsibilities, the federal responsibility for training and for employment related needs, which was geared mainly to the economic sphere.
I think we have considered a number of options and we see that as being crucial, that certainly because the responsibility for education has been given to the provinces but in a totally unclear way in relation to the needs of 1980, and because the federal government has accepted some responsibility for employment related training, there has already been a beginning of that discussion.
I think what the CCLOW and the Canadian Association for Adult Education are saying is that a starting point—and a very important starting point—is the recognition of the freedom to learn, and that that is so basic that the lack of that right renders many of the other rights and freedoms in a constitution irrelevant. They are irrelevant to the 2 million people who are not able to be functionally literate, to be able to write and read and communicate. Who knows how many people vote by guessing because they are not able to read the campaign literature. What we would recommend as a starting point and a very important basis for any movement would be a recognition that this is a basic right. We have not located or are unwilling to say that there is a certain point in the Charter of Rights where that ought to be placed. There are a number
of possibilities. Certainly it is very relevant to the discussion of democratic rights.
We also note that you have a section on official language minority rights which could be expanded to other learning rights. Our concern is that that right be guaranteed and that that be the starting point for federal-provincial discussions. Then it is clear that the right to learn is something that this country has committed itself to and that we have some responsibility to work out, to finalize and to find solutions, that the discussion began in 1965-1966, far beyond that, and no solutions have been reached and there is at this point no commitment to reach a solution.
Does that answer your question to some extent?
Mr. Hawkes: I think it goes beyond but in a desirable direction.
I have a continuing concern in this Committee for that proper balance between what courts decide and what elected people decide, and as you talked I was reminded of my last two elections and in fact my first two which came close together, but the experience of going door to door does identify for you the broad range of people and the broad range of educational levels, and that is not an experience that all of us have in other occupations, but you certainly do when you go throughout a riding in federal politics, you do get some sense of that. I think it brings some sensitivity which might not be so readily available to supreme court judges sometimes, the life experience of live people rather than just interpretation of law.
I have one last item I would like to discuss with you and it relates directly to your recommendations and the statement you have just made about you wanting us to guarantee the freedom to learn, but then your next clause I think begins to define or to provide us with a synonym of what you mean by freedom to learn.
You say the right to access to learning, and the critical word for the population which you represent, if I understand correctly previous experiences as well as your presentation, the critical word is access; and as I read that I tried to define the word access for myself and I would like to run a set of words past you and just see if I am on the right track or whether I have missed anything significant. I think that access begins with attitudes, that is the attitudes of society generally, parents specifically that Monique mentioned, and I think there is another part of attitude which is the attitude that women have towards themselves and what it is that they can learn and what it is that they do learn. Those attitudes have been conditioned by things like television, the way the press reports things, the textbooks we learn and so on. But you can not have access without a change of attitude, that once that is accomplished there must be classes, there must be the learning place, the learning format, the learning process; but also there must be finances, and that is particularly true perhaps as we move through life’s stages where we have responsibilities for children and so on. There must be daycare, and I think that is specifically in your brief; and one we might not see as clearly but there must be time, that this reorientation and total educational process is something that does not occur in a short time span but must take place over a long time span.
Is that an adequate definition of access or have I missed something?
Ms. Corkery: I think that probably several of us would like to respond to that somewhat briefly. I would like to make one preliminary comment and that is that I think it is important to distinguish those aspects of access that are structural and that have to do with the way our society is structured or what we are committed to and those aspects of access that are more psycological or social, and I think that we are talking about the former and that is why we are putting emphasis on something being enshrined in a charter of rights.
In our viewpoint, our situation is too urgent to wait for attitude change alone, and we also feel that the reason people have the attitudes they have is because of the structures that exist and what we are saying is that there is no commitment to providing the structure for learning programs for men and for women. There is a particular urgency for women.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes. I would like to invite now Mr. Ron Nystrom followed by the honourable Senator Florence Bird. Mr. Nystrom.
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to welcome the Association before us today and I particularly want to say thank you to Monique Burchell for the telling of her own story. I think one of the most effective ways to make a point in life and a point in politics is to tell a personal story and a real story, and I think it was very effective and I appreciate the story.
I do hope that our country can start offering more equal opportunities for all kinds of disadvantaged peoples. We spend so much money on things that are materialistic within our society, things that are of little or no value. We as a human race spend billions and billions of dollars-a year on armaments for war and for killing and for destruction, and still we invest so little in people.
I have always seen people as our basic resource and I hope that collectively we can move a lot more rapidly towards creating a society based on equality of condition and sharing and co-operation and helping people that need assistance.
We have had many groups come before our Committee. I reflect back, for example, on some of the native Indian groups that came and, one of the other presentations of an individual besides Monique’s that I found quite moving which was by the head of the Saskatchewan Métis and Non-Status Indian groups, a fellow named Jim Sinclair. He talked about welfare and he talked about the fact that the majority of native people, non-status and Métis people in my province, are on welfare. He said, we do not want welfare, we do not want welfare at all. It has been one of the curses that we have had to face. What we want are opportunities, economic opportunities, and if you invest in us as people, we will repay that welfare many, many times over.
I find it very frustrating as a politician that we have not been able to involve our society and persuade the powers that be that we should make that radical departure and invest a lot
more money in ordinary people that need a few breaks because over the course of their lifetime they will repay us many, many times over for investing that money in their lives.
Sorry for that little speech, but I think you made a very useful presentation here this afternoon, and I hope that we are able to play some part through the constitution to fulfill some of those dreams, Monique.
I wanted to ask you a couple of things. What you are asking us to enshrine here is the right to access to learning programs, what we might call social rights in the constitution as opposed to an individual right or a democratic right or a legal right.
Are there any other social rights or economic rights you think are important to enshrine? What about the right to health care, to medical care, the right to housing or the right to an income. Have you thought these through as well? Monique has mentioned the problems of inadequate daycare, the problems of lack of income. What about the possibility of enshrining the right to an income. It may not necessarily be the right to a job. You can have the right to a job or an income and get money from both; but if it is the right to an income it could be through adequate compensation for going to school, vocational school or university, or part of that could be subsidy for daycare.
Have you thought of other social rights or economic rights that could be enshsrined that might help the cause?
Ms. Corkery: No. First of all, no, we have not.
Secondly, I think we are in agreement probably with the previous speakers who were emphasizing that we want to be as basic as we can, and I guess we are trying to look at whatever is the root situation.
We have certainly discussed and thought a great deal about the importance of full employment. The logistics of enshrining full employment, for instance, or some such even more specific social right in the constitution are very, very difficult. I think that we are presenting you with the difficult one in suggesting the right to learn.
I think our position at this point is that we have worked mainly on the right to learn because we see that as one of the most urgent and meaningful rights that can be enshrined for women and one that will make an immediate change in women’s social position, at least it has that potential.
I think that is really all that we could say for the variety of other social needs.
Ms. Ryan-Nye: Yes, all that I would add to that, I think, as was pointed out before, one of the key words there is “access”, and in fact under access we are talking a lot of those things. People cannot learn if they are ill, they cannot learn if they are out on the street in a tent, they cannot learn if they do not have daycare. So we are saying basically we must have the right to learn so that we can take advantage of other opportunities that are there for us, but in order to do that we have got to have the access even, let alone the programs. We have
got to have the access and I think :I lot of those things are included in that.
Mr. Nystrom: I think you have answered my second question. I was going to ask you whether or not your interpretation of access or the right to learning programs would include things like the right to an income because if you do not have the funds to go to university, then the right to learn is meaningless, and I think you have answered the second question.
Ms. Burchell: I would like to say something to that first question.
I think one of the reasons, I think, that this particular social change is more wider and more sweeping than the other very important ones that you have mentioned is because, well, I guess to make the economy function people have to be productive and this is the one that has the most potential for making the most people productive in the situation so that we can support the kinds of other rights that you are talking about.
Mr. Nystrom: I want to refer to page I of your brief where you quote a UNESCO Report, which is the United Nations Education and Social and Cultural Organization in November, 1968, on our adult education, and it refers to the objectives and goals of adult education policy in terms of some very laudable objectives in the world, and they refer specifically towards women and the problems of women and the need towards achieving self-determination for women, enabling them to conribute to the life of society as a collective force, and I fully understand the special problems of women and I have seen many times the economic statistics of the hardships that face women and the discrimination against women, and I fully agree with you and your second recommendation here that women should be named as a disadvantaged sector of our society, but you do refer to adult education and I am just wondering if you had any statistics as to how much worse it is for women than men because if we enshrine the right, we are talking about the right of course for men and women, and have you done any comparable studies that might be of interest to us or useful to us?
Ms. Corkery: I think we could locate that material. We did not choose to focus on that, and I think that to some extent it can be misleading.
What we have found is that in some cases, for instance, the breakdown in statistics are in various areas. There are levels of skill, there are levels of training, there are levels of basic upgrading and education. In terms of basic education, grade 0 to grade 12, I believe the statistics show that women have a slight advantage, and I think Monique was saying that herself. She was saying: I have grade 12 education, that is even more than most women on welfare.
However, that education is not often relevant to earning a living and supporting oneself, and I think that we were speaking of the need as well for men in terms of the changes in our society. Many women are trained, for instance, to be typists, to be secretaries at a time when secretaries and typists are no
longer going to be necessary. In fact, they are becoming redundant by the day.
Do you want to speak to that, Monique?
Ms. Burchell: I was so busy thinking.
Ms. Corkery: I was going to offer that to Monique since Monique brought that up earlier, that what we are looking at is a kind of continual training and retraining, re-educating process that is going to go on for the foreseeable future. We are not expecting that if people catch up what they missed they will then be educated and trained and we will not need training any more. If that were the case, we could dispense with the Department of Employment and Immigration, the employment portion anyway, because we could plan a program and people would be trained and that would be the end, but our economy does not function this way, anywhere in the world, anymore and our policies and our charters and our structures have not caught up with the changes that are happening.
So it is a continual problem, and I guess the issue about men and women is that we have different kinds of training and that can be very well documented. The amounts are not as relevant as will the training and education we have get us where we need to go.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom.
Mr. Nystrom: Thank you very much.
The Joint Chairman (Mr. Joyal): The honourable Senator Florence Bird.
Senator Bird: Thank you, Mr. Chairman.
I think I should begin by saying I was very much moved by Monique Burchell’s story. She told it well and it had a great impact.
I think what upset me personally, because I worked in this field for so long as you know, was that this is not a unique story. There are thousands of people who have the same experience and I use the word “people” because when I think about education or when I think about the Charter of Human Rights, I think about people. I do not quite see how putting your suggestions into a charter which has to be a declaration in very general terms would really have altered your parents’ attitude towards you, the lack of information that kept you from getting your loan and all the other things that happened, and I think we have to think in broad principles here.
Now, to begin with, under the Declaration of Human Rights that, as you know, we signed in 1948, under Article 26 it already says everyone has the right to education. Education should be free, at least in the elementary and fundamental stages, elementary education should be compulsory, technical and professional education shall be made generally available and higher education should be equally accessible to all on the basis of merit.
Now, as you know, the Charter of Human Rights, the UN Charter, is binding. The provinces have agreed to it, and as you know education is under provincial jurisdiction.
I think that when we are talking about a constitution we have to think in very broad terms. Of course, everyone should have a right to an education and I think you did have that right. It was merely that somehow by bad counselling you did not make it. Maybe you will yet.
I think also, as Mary Corkery has pointed out, it is very difficult for women because they are the ones by tradition supposed to look after the children and if they want to go on and get a higher education so they can support them better, particularly if they are single parent families, unless we supply them with daycare centres that are well supervised they are going to be having themselves in a double bind of guilt and worry and the ill health which goes with all of those things.
Now, I think all of these are very serious social problems and I think everyone at this table, on both sides of the table, would understand this, as Mr. Nystrom has pointed out, and agree to it; but there are several questions that I feel worry me in your presentation.
For example. it would seem to me that you were already protected under Section 15(2). Now, I know a number of people have suggested that women should be included as disadvantaged members of our society, or as groups. Now, of course women are not a group, they are half the population. Some women are discriminated against, some women are disadvantaged, though some of us are not and may be more fortunate.
Now, do you think that it is really a good idea to mention women specifically when they are 51 per cent of the popuIation, surely that Section 2 protects us women but also protects others, and that by putting women in there you are saying that all women are disadvantaged, which of course is not true. We have been for centuries but some of us are less disadvantaged than others, and I wonder if you could put your mind to what I am trying to get at. I am not trying to deprive you of anything by this because, heaven knows, no one cares more than I. It is merely: is this the place to put it? Is it a good idea? Many women who I have talked to are very annoyed at being lumped in like this; those groups that are disadvantaged should be given affirmative action, there is no doubt about that.
Ms. Corkery: I would like to start off our response. We may all want to respond to that.
I think you have raised, Senator Bird, a number of issues, and I have written down a few of them. ‘It is going to be hard to sort them out.
Senator Bird: Well, take them in the order that you think is the top priority.
Ms. Corkery: Well, the top priority? I would start with your statement that not all women are disadvantaged. I believe that we would disagree with you and our brochures reflect that. We believe that the situation is still the case, that women are disadvantaged as women in 1980.
Senator Bird: In education we are talking about now?
Ms. Corkery: Yes, definitely in education. And those kinds of statistics our organization can supply you with liberally. There are all kinds of statistical back-ups for women’s disadvantaged position educationally at every level, and we are particularly concerned with adult education, the kinds of informal and the kinds of learning needs that are related very closely with our economic well-being.
Senator Bird: Can I interrupt there? You would also, and I think you did admit in your presentation, that there are a great many men of that 2 million people that you mentioned who are functionally illiterate, so that by putting women in there I do not want to discriminate against men.
Ms. Corkery: Yes. I do not believe we are discriminating against men. I think there is nothing in our brief, and in fact I think our brief very clearly indicates that we see our issue as being part of a much larger issue and I think that is true of many women’s issues. They are often part of a larger structural issue.
However, we have to begin with our experience and the urgency of our needs, and as we mentioned, quoting the women and poverty reports, women are the poorest sector, they are not a group. We are poor, and that provides a great deal of urgency to our situation, and for that reason we believe, and for the situations that have already been documented well by many other groups such as the Bliss case and the Bédard case, various cases, we do not believe it is enough at this time to assume that disadvantaged sectors will clearly include women. We think that needs to be stated still. Hopefully there will come a time when it is not needed but we do not see that as being right now.
That was only the first . . .
Senator Bird: The first point?
Ms. Corkery: That was one point. Does anyone want to respond to that before we go on to some of the others?
Ms. Ryan-Nye: Yes, because I would agree that I would take umbrage with the fact that not all women are disadvantaged. I think that forming a constitution now or creating a constitution with a charter right now is not only a unique opportunity, but it is a uniquely difficult one because much of the proof of the problems for women, and the proof of the discrimination, has in fact only become very public in the last few years when you talk about even the life of Canada.
Now, I think when you are trying to form a constitution right in the middle of great changes, great social changes, and yet a constitution is to reflect what we believe, reflect the principles, I think the task you have before you is not only does it have to reflect the principles that we all believe in, but it has to open the doors to the changes that are still necessary in
creating a society that we are still figuring out, and taking into account roles that have changed drastically. The constitution that we would have created 100 years ago should not be the constitution that we create now, and yet we are still in the process of incredible changes and the proof of the discrimination against women simply because they are women, because the attitudes are in the process of change; they have not changed yet, we are all in different places in that continuum. We have to deal with the fact that we are trying to understand the water we swim in. I think that that means this constitution is a little tougher and somehow has to give us the rights that are necessary so that we can come out of this with a society that gives us both the equal place, the equal participation and the partnership that we now know in the 1900s, and not much before, has not been and should be.
So I think you have got to say specific things in the constitution in order to make sure that the changes, which we are still trying to understand, do happen.
Senator Bird: Did you have something else?
Ms. Corkery: l think that that covered a lot of the points.
The other issue, Senator Bird, that you were addressing, l am not sure if I had it clearly but I think there was an implication that because Canada has signed and has commited itself internationally to the right to learn, maybe that does in fact take care of a commitment which everyone is honouring, and what you are saying is that in fact Monique did have the right to learn. there were merely some obstacles in the way and that again is another thing that I would disagree with.
I think that our government has on many occasions, as we have said, signed international agreements stating their commitment to the basic right to learn, What we believe is that that is not enough. We believe that, as with all other rights, it is interesting that most other rights that are recognized on an international level, are also recognized clearly nationally, and in examining what has been happening nationally over the past one hundred years we would say that it is not clear, there is not a clear commitment to the right to learn, and I believe that comes from studying the very difficult relationship between provincial and federal jurisdictions
There seems to be a lack of ownership and clarity about that right to learn. The federal government has accepted responsibility for employment related training, at times when industry has needed people to be trained at moments of great urgency. Before 1966, and there in fact was an earlier agreement. these things were not clearly spelled out.
So, I guess without going into the details of those discussions, it seems to us that that is not clear and that that does need to be made clear and would be a very important starting point for federal/provincial discussion and for a commitment to resolve that gap.
Senator Bird: You wanted to answer it, too?
Ms. Burchell: I just wanted to add a little bit there.
You were mentioning that you did not see how entrenching the right to learn as a right would have changed the situation and I just wanted to say a couple of things on how I thought it might have changed the situation.
Senator Bird: Well, I think what I said was that I thought the Charter as it is now, with a few verbal changes which I am in favour of, of course, and I have no doubt they will be made, does cover your general picture.
Ms. Burchell: I see.
Senator Bird: Well, what I was trying to get at is that you must see that a constitution must deal in very general terms and one of the problems that has been coming before us again and again is that if you get it down into too little detailed structures you cannot keep up with your fast changing society and you get a constitution that is so rigid you just cannot deal with it as your society changes, so that those fundamental points that we made about sex, ethnic origin or the rest of them in that Section 15(1) are of essential importance. While the rest have to be included in that as part of the general picture, but if you get every single section of society included you are going to have a charter which is almost impossible to carry out, I think, but I would like to hear what you have to say.
Ms. Burchell: Well, it seems to me one of the difficulties is that people in our society generally assume that we do have the right to learn and why should we write it in this particular way, into the constitution, and it seems to me that if it was written in this specific way, well then I would be able to say: well, why was I not given this information at the right time of my life?
I could make a very good case, for example, for not having been educated as a matter of fact from the age of about l3. Why was information about ways of going to university and funding not made available to me? If it was a right then I would be able to argue that obligations had not been fulfilled and to try and get the problem redressed. So would everybody else.
The Joint Chairman (Mr. Joyal): Thank you, Senator Bird. Mr. Dantzer followed by the honourable Senator Yvette Rousseau.
Mr. Dantzer: Thank you, Mr. Chairman.
I, too, would like to congratulate the witnesses for underlining what I certainly believe is a very, very basic problem in today’s society. Certainly I think women have a greater need of having the right to learn than men, in that sense you are unique in two of the areas that you did not mention, certainly those areas where a woman has raised a family and now wants to get out in the workforce and she finds it very, very difficult to find adequate training for her at that stage of her life.
Secondly, another problem which I note in my constituency, is that people move into the area, the family, and the woman
in that family has to find a job. The man has moved there with a job being offered to him; she then must go out into the workforce and find an opportunity in perhaps an area where there are few opportunities, and again that is a very unique problem to women.
So that I would certainly support your request to have the right to learn placed in the constitution because I think it is a permanent right, it is something which will always exist in our society. It existed a hundred years ago, it exists today, it will exist a hundred or two hundred years from now. Every individual in our society will always need, and should have, the right to learn. So therefore I can support that concept very strongly.
However, I cannot support so strongly the other request you make to place women as a specific disadvantaged group in the constitution, because that will perhaps, we hope will not always be a permanent problem. Hopefully it will not exist a few years from now. And in writing the constitution I think we would try to make one which insofar as that is possible, I do not believe it is completely, but so far as it is possible to write a constitution which will last, which will need little change and which generally reflects a permanent condition of society, like permanent freedoms and things of that nature, and therefore I would say that I could not support that so strongly and I am wondering whether you have any comment upon what I have said?
Ms. Ryan-Nye: I would be glad to be part of the amendment in a few years to take it out when it is no longer needed. However, right now, again I go back to the fact that the times are not there now and we are very worried because we see the proof under the existing constitution, the times are not going to get there where you are talking about, unless we have got something in the way of a general principle, but spelled out for us, that we can come back to time and again when we have to fight time and again to say: wait a minute, things have changed, and here is how they have changed and here is how this must change in order to reflect that.
I think that that is an example of what we need right now because of the situation right now and because of the way the situation will be for whatever period, and that again, you are right, we want to head towards some sort of society that in fact has these things we believe in now and we have become aware of. We are afraid we are not going to get there unless there are particular advantages in the way some things are worded that face the fact that things have not been right up until now and encourage the courts and the parliaments to understand that better and to move on it.
Mr. Dantzer: I understand your concerns in that regard.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Dantzer. [Translation]Senator Yvette Rousseau.
Senator Rousseau: Thank you, Mr. Chairman.
On behalf of the committee, I would also like to extend you a warm welcome. I listened to your presentation very carefully.
However, one question does come to mind. How can we reconcile the existence in the constitution of a Charter of Rights designed to provide minimum protection of human rights and a provinces’ desire to improve its educational system, which after all is partially a provincial matter?
That is my first question.
Ms. Corkery: I think there is no contradiction because there is nothing stating a basic right to learn that would in any way limit any province in terms of how they translate that right to learn. .
In fact, even more basically, we are not trying to specify matters because we have no pretence of being able to solve problems which so far have been irresolvable between the federal government and the provincial governments.
We have no intention of defining how that right to learn should be implemented by federal or provincial governments. What we are saying is that if we have enshrined that basic right to learn, we have the impetus for further action and consultation, and we also have an obligation to work out a solution.
Does that begin to answer your question?
Senator Rousseau: Partially.
I have a second question to ask, if I may, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Of course.
Senator Rousseau: Has your group proposed a clause providing for the implementation of affirmative action programs for disadvantaged groups such as women? I am not saying that women are a group, I agree that women constitute half the population. However, since you mentioned that some women are disadvantaged in the educational system, have you proposed such a clause? If so, could you explain the scope and wording of the clause?
Ms. Corkery: lf I understand you correctly, you are asking how we propose to deal with affirmative action for women specifically.
We propose that there be enshrined the right to learn as the right of every adult. Every person regardless of age, covers it very well, I think.
In addition, we feel that the mechanism for enshrining that woman’s disadvantaged position is righted would be part 1, Section 15(2), and that the addition of some specific mention of women as a disadvantaged sector in our society. That is the mechanism that we proposed, the one about which we were speaking with Senator Bird a few moments ago.
Senator Rousseau: If I may, I would like to ask a supplementary question.
The Joint Chairman (Mr. Joyal): Yes.
Senator Rousseau: It is all very well to say you want provision for women in this clause, but do you not think, as Senator Bird and others mentioned, that there are aso men who do not know how to read or write, and who have no access
to a decent education. This applies to both men and women. There may be fewer men in this situation, but they do exist.
Do you think we can expect the state, or society, to solve this type of problem?
I personally think that it would be very difficult to include all these problems in a charter of human rights, because the list would be endless. There would be a danger of leaving out some problems, and it would not be because I have not defended women’s rights. I understand your problem. I have listened to the proceedings very carefully, but I very much doubt that we can provide for women disadvantaged in this way in a charter of rights, because women are disadvantaged in areas other than education.
Ms. Corkery: Yes, we are not saying that women are disadvantaged only in education.
It is also important to remember that there are certain very clearly defined and very visible sectors of our society who are disadvantaged. I think very few people will disagree that women are disadvantaged. Men are not disadvantaged because of their sex. I think they are disadvantaged due to a variety of circumstances.
I would like also to point out that there is nothing in our recommendation which is at all exclusive.
We are not saying that other people should not be mentioned or treated under that section. We are only stating that it is very important for women that because of our experience we be named at this time as a disadvantaged sector.
Senator Rousseau: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mrs. Rousseau.
Mrs. Ryan-Nye, do you want to add something?
Ms. Ryan-Nye: Yes. I would like to add something by way of clarification. Section 15(1) and (2) do not keep the redressing strictly to education, and, obviously, our request for at right to learn is not limited merely to women.
We are saying that we have backed up from our promise, We are not here because there is a little problem that we would like you to put into the constitution along with a whole list of others. We have backed up from that problem and come down to the right to learn, what we are saying is that nothing else in this Charter right now will allow us to fight for the changes which must come for the help that must be there in our society, so that it becomes a fair and just society for men and women.
We are saying that if you back-up the problems. you will find those other rights will not deal with the ones that we have had problems with, because we have gone to the Bill of Rights before, and we have gone to the constitution without that right to learn, and we have not been able to come out with the changes and the help and the programs that we need.
The Joint Chairman (Mr. Joyal): Thank you.
I see the Honourable Senator Tremblay would like to add something.
Senator Tremblay: Thank you, Mr. Joint Chairman.
If I understand you correctly, from what you have just said, in fact you are referring to the right for continuing education. Is that the case, do I understand you correctly, both for men and women?
The problem you have raised, if I understood you correctly, is the problem of continuing education. It is a problem of access to learning facilities which would take care of the specific situation of people when they reach the stage beyond what we might call the normal period of schooling?
Is that in fact the problem that you have in mind, and that what you call the right to learn is the right to continuing education, a kind of education which would be adapted to the diversity of situations both of men and women or any category?
Ms. Corkery: I think we are talking even more basically than that.
We are saying that the right to learn, regardless of age; so we are saying we do not even need to say that. We can just say that everyone has the right to learn regardless of their age; so that when Monique walks into a grade 10 or 11 class at the age of 20, no one can say to her, “You have no right to be here.” We have a right to learn at any time.
Senator Tremblay: That is in fact, the concept of continuing education. It means that despite the age or stage of learning you have reached in the school system, if I may use that expression, the school facilities be open so that whatever might be the stage of learning that one person has reached, the school system should be open enough so that that person could just go on from wherever he or she is to where he or she would like to go.
Is that the general concept of continuing education, just called a few years ago adult education? l think the philosophy of the matter has evolved from the concept of adult education to the concept of continuing education.
The Joint Chairman (Mr. Joyal): Mrs. Burchell.
Ms. Burchell: it is true what you are saying, but to a certain extent it has to be qualified by the rest of the clause which reads:
as a means to participation in the democratic process as a preparation for paid employment leading to economic independence and for a more effective involvement in family and community life.
These phrases actually define what we are talking about, so that it is a bit more specific than continuing education. It is not just continuing education for the sake of education that we are talking about. I wanted to clarify that.
Senator Tremblay: But as you know very well, there are some people who want continuing education for this purpose, others for another purpose.
I was merely mentioning the principle. Assuming that the objective or purpose is left to the individual person, some will
want continuing education for leisure, so to speak, others for work; others for other purposes.
Do you want to be very specific about the purposes or the objectives, rather than expressing the general principle that continuing education has become a sort of right in our society to day?
Ms. Corkery: Well, certainly for the purposes of this brief we have, ater a great deal of consideration, decided that the urgency and our rationale for including the right to learn have very much to do with those things we have specified.
For the purposes of this brief, we also recognize the broader context of contiuing education and its evolving role over the next few years.
The Joint Chairman (Mr. Joyal): Thank you.
Merci, monsieur Tremblay.
On behalf of the honourable Senator Hays, the Joint Chairman, and on behalf of all honourable members of this Committee, I would like to thank you very warmly, Mrs. Corkery, Mrs. Ryan-Nye, and Mrs. Burchell for helping us, and also for your contribution to our discussions on the definition of equal opportunities.
We know that in our society everybody is supposed to be equal, but we know that some are more equal than some others, and most of the time that is due to economic, cultural, social or even sometimes sexual distinctions.
In the responsibility that we have to define the context in which equal opportunities will be defined, I think your contribution this afternoon has been of paramount importance.
Thank you very much.
The meeting is adjourned until 8:00 pm. this evening, when we will hear from representatives of the Forestry Faculty of the University of Toronto.
The meeting is adjourned.
The Joint Chairman (Senator Hays): Ladies and gentlemen, may I have your attention, please. This evening we are honoured to have as witnesses Professor P. L. Aird and Professor D. V. Love from the faculty of Forestry, University of Toronto. We are delighted to have you, the procedure you are familiar with and you can go ahead, Professor Love.
Professor D. V. Love (Associate Dean, Faculty of Forestry, University of Toronto): I have not had the pleasure of addressing a double chair. I presume Messrs. Chairmen would be an appropriate introduction.
The Joint Chairman (Senator Hays): It takes two of us to make one.
Mr. Epp: Explain.
Professor Love: Well, Messrs. Chairmen and members of the special Joint Committee on the Constitution, Professor Aird and I wish first to thank you most sincerely for this opportunity to appear before the Committee. We feel strongly that much more attention must be given to wise resource
management if Canada is to achieve the objectives set forth in the constitution.
Before attending this meeting we were asked if we were appearing as individuals or as representatives of the Faculty of Forestry of the University of Toronto. I must point out that while we are appearing as individuals our brief reflects a measure of university thinking. Also it has been endorsed by the Canadian Forestry Association.
Our brief refers in general to natural resources and we believe that our recommendation for modifications of the constitution act of 1980 has relevance for all natural resources. Nevertheless our brief and our presentation here tonight will bear on renewable resources with particular reference to the forests.
We believe that in most countries of the world the renewable natural resources will plan an ever increasing role in developing and sustaining economically viable society. Canada, with its vast renewable resource potential not only has an opportunity to use these resources effectively in that develoopment of the Canadian economy, but in addition, in a world hungry for resources, we have a moral obligation to exploit these opportunities. The development of our natural resources in the past has been the foundation of our industrial and economic strength.
Our future, and that of a significant share of the world’s population will be greatly influenced by the hus bandry with which we handle these resources. With your permission our plan for our presentation is as follows. Professor Bird will provide on historic perspective ctive relating to the place of forest resources under the British North America Act in Canada’s history. I will follow with comments and statistical backing relating to the value of natural resources, specifically the forests, and some cautionary words about our present status and our uncertain future. Professor Aird will then conclude on the critical aspect of the future, respecting resources, as we see them, and why they have relevance to the constitution act of 1980 and hence to the deliberations of this Committee.
Professor Paul L. Aird (Associate Professor, Faculty of Forestry, University of Toronto): We suggest that it is important to have an historical perspective of the British North America Act and its application. At the ourtset the act gave exclusive powers to the provincial legislatures for direct taxation within the provinces to raise revenue and for he management and sale of the public lands belonging to the province and the timber and wood thereon. The act applied to the political situation in 1867. At that time there was no income tax, no property tax. Wood products consisted primarily of poles, posts, firewood, shingles, staves, hoops, squared timber and lumber. The paper industry began just one year earlier and showed no promise of becoming the giant that it is today.
There was no conception of provincial or federal responsibility for protecting the forest from fire, insects or disease. There was no conception of regenerating the forests after logging. There was no conception of forest research. Yet despite the exclusive powers accorded the provincial legislatures the federal government was involved in provincial forest resource matters from the outset.
For example, I have in hand a copy of the journals of the House of Commons of the Dominion of Canada in the year 1931 of the reign of our sovereign lady Queen Victoria being the first session of the first Parliament of the Dominion of Canada and it includes the final report of the select Committee on the best mens of protecting hemlock timber from destruction. Hemlock timber was being used at that time for the manufacture of an extract from hemlock bark which was exported to the United States and used in Canada for tanning purposes.
So right from the outset, since the beginning of Canada, the federal government has been involved in forest resource matters relating to the provinces. Hence we smile when we hear provincial politicians demand that their exclusive power over natural resources be continued in the new constitution. I has never been that way and perhaps never should. A strong federal presence is important to forestry in areas such as statistics, economic policy, trade, research, communications, gene pool conservation, intergovernmental affaires and others. Likewise a strong provincial presence is important to forestry in areas such as fire, insects, disease, statistics, economic policy, trade, research, communications, gene pool conservation, intergovernmental affairs and others.
So in the constitutional deliberations let us not tie ourselves to the original British North America Act. It was conceived for a different time under different conditions and has since been applied invarious and wonderous ways.
To paraphrase the introduction of Emerson’s treatise on nature, too often we base our philosophies on past traditions developed by previous generations when, since the sun shines on us also, we should create our own philosophy of insight, and I quote:
These are new lands, new men, new thoughts. Let us demand our own works and laws and worship.
So the sun shines on us too. Let us create a new constitution, that truly reflects the needs of both today and tomorrow.
Professor Love: I will try to give you a bit of a picture of the present status of our forest resource. The importance of this resource cannot be depicted without resorting to statistics. Unless you are already familiar with these statistics any
quantitative terms which I might use would be discounted as rank exaggerations or at worst downright falsehoods.
The facts of the case have been exhaustively reviewed recently by the Canadian Forestry Service through many studies, the best known of which is Forest Management in Canada by by F.L.C. Reid and Associates. Professor Reid is now Assistant Deputy Minister for Forestry in the federal Department of the Environment.
Other occasions on which detailed relevant studies have been undertaken include the National Forest Regeneration Conference of the Canadian Forestry Association in 1977 and, more recently, in September the Canadian Forest Congress which was held in Toronto.
To make the recital of this statistical data as painless as possible I will highlight pertinent points as they relate to matters with which we all have some concern.
First, employment. The forest resource industry employes 330,000 Canadians. This is a direct employment; there is a multiplier factor of three which means we are talking in terms of about 1 million people. The workers represent about I6 per cent of all people in the manufacturing sector. The output of forest manufactured products is $19 billion. The farm cash receipts for grain is $4 billion, so that the relative position of forestry is established by these statistics.
From the point of view of exports in 1979 the exports from forest products was $12 billion. The net trade balance for the forest industry was $10.7 billion. This represents more than the combined operations of mining, petroleum, fish and agricultural products.
I do not feel that we need further evidence to impress us with the fact that without our forests our basic economy and our standard of living would take a deep cut.
Another important point about our forest industry which the statistics, as impressive as they are, do not reveal is its importance in developing rural Canada. When I say rural Canada I do not mean agricultural Canada but rather those areas which lie outside of the agricultural area and outside of the urban and industrial areas. This is a large proportion of our country.
There are dozens of towns and villages in every province, with the possible exception of P.E.I., which would not be there except for the development of the local natural resources. Hence, the development of these resources has been a key factor in populating Canada and in providing the equalization which we now enjoy as imperfect as it is.
Other aspects of the use of the forest and related resources, about which statistics are either nonexistent or very nebulous, are those that relate to the care and protection of the soil and water provided by the forest and the recreation and tourism that further assists in the development and better use of our country.
Returning to the industrial use of our forests, which is of such importance to our economy, we now examine the prospects for the future.
In Canada we have 3.1 million square kilometres of forest land. About 75 per cent of this is suitable for timber production. From this land it is estimated that an annual harvest of 227 million cubic metres can be taken on a sustained basis. ln 1979, 162 million cubic metres were cut.
I will just repeat those figures because they are critical to this discussion. The annual harvest that we could take is 227 million cubic metres. What we have taken last year was 162 million cubic metres. Now, if you compare those two figures you will say: well, we are taking far less than we could. However, in fact, the allowable cut, the 227 million cubic metres estimate is viewed with scepticism on the grounds that appropriate allowances have not been made for wood in inaccessible locations or in species that cannot compete in world markets.
Considering soft woods, and this is our main stock in trade and the bulk of the volume harvested, the four eastern provinces, that is the Atlantic provinces and Quebec, are believed to have manufacturing capacity in excess of the ability of the land to produce raw material, and with the exception of Alberta, which appears to have a surplus, the other provinces are approximately in balance.
The seriousness of this situation becomes evident when it is appreciated that the world demand for wood products is rising and Canada has the potential in terms of land and technical know-how to take advantage of this favourable market situation.
To give a comparison, the Nordic countries, Norway, Sweden and Finland, are able to harvest 110 million cubic metres per year on a sustained basis from a forest land base of 50 million hectares. The forest land base in Canada is about 200 million hectares. ln other words. the Nordic yield per hectare is close to three times that of Canada with no real difference in the climatic or soil conditions affecting tree growth.
Of the billions of dollars that are realized from Canada’s forests in terms of provincial revenues through stumpage, federal income taxes and corporation profits, the agencies responsible reinvest some 150 million in forest renewal.
The careful estimate required for forest renewal is approximately 300 million. That is twice that which is now being invested, and the other aspects of management, including information services and forest protection and many others, including research, require an additional 300 million, thus the minimum required to keep Canada in a position to realize at least some of this wood production potential is approximately $600 million per year for the foreseeable future, and that future includes correction of the backlog of neglect from the past and the development of technology that will lead to a more efficient way of producing the raw material which is essential to maintain the groth of Canada’s first industry, the wood using industry.
Canada’s problem is not its potential but in its ability to exploit that potential.
Professor Aird: l am privileged to have this opportunity to conclude our brief on natural resources and the constitution of Canada, but first permit me to emphasize some of the principles on which our brief is based.
Let us first examine Canada’s labour force distribution, and I brought along this display which is representative, it is a scale model of Canada’s labour force and we use this in the course on natural resource policy at the Faculty of Forestry, University of Toronto.
Now, this is the primary resource base. It is agriculture, fisheries, forestry and mining, and built upon this base is this part. This is the secondary aspect, secondary manufacturing and construction. This is the working force built upon this resource base. It includes the pulp and paper mills, the canning factories and things of this sort.
Built upon this is this labour force, in the service areas, which is trasportation, banking, insurance, real estate, public administration, governmental services, universities, the press. Essentially all of us in this room are in this sector up here.
Now, the tragedy of it all is, as Professor Love mentioned, that our forest resource and other resource bases are dwindling and so as this base deteriorates, so the superstructure that is built and dependent upon it must also deteriorate and dwindle and so it puts it into a bit of a shaky situation.
This is what our brief is all about, but we must maintain this resource base. This is Canada, and if we do not pay attention to this, then all this superstructure that is built and dependent upon it must suffer.
So, equalization payments come into this discussion but they will not ease all of the suffering. In fact, they resemble an award for resource mismanagement and could aggravate the problem even further, so the areas that are not effectively managing this resource base are those that need more equalization payments.
We contend that effective resource management is vital to the continued survival of Canada as a major industrial power, and Prime Minister Trudeau has said that we are one of the seven great industrial powers in the world, but we are disturbed by this constitutional debate on natural resources which is centred almost exclusively on resource ownership. resource taxation and inter provincial and export trade.
It is our view that Canada’s survival as a major industrial power depends little, if at all, on federal-provincial jurisdiction over resource ownership, resource taxation or resource trade. The critical resource issue governing the future of Canada is whether or not we will embrace a commitment to manage our natural resources to meet the needs of society in perpetuity.
If we could leave you with just one thought to remember tomorrow it would be this: who owns Canada’s natural resources or who taxes them or who trades them matters little, if at all. The critical resource issue is how well we manage our natural resources to meet the continuing needs of society.
Turning now to this document before us, the Canadian constitution, la constitution Canadienne, prominent in the centre of this is Canada’s flag and the prominent feature of this flag is the maple leaf. The maple leaf has been a symbol of Canada since its inception. It is a symbol fo Canada’s ability to provide food, fibre and fuel to the original inhabitants and to the present inhabitants and to future inhabitants.
When we go a stage further and look at Canada’s heraldry, the heraldry of the provinces, such as British Columbia has mountains and elks in their heraldry, and Saskatchewan recognizes Canada’s heritage as land capable of growing wheat, and Ontario’s heraldry includes deer, moose, bear and maple, and Prince Edward Island has a green island with a large oak tree as a symbol of the solidarity, the strength of Prince Edward Island.
Even Canada’s money recognizes our heritage. The dollar bill is particularly appropriate to our presentation this evening. in the foreground is the forest products harvested from Canada’s forest, the forest industry and in the background is the Parliament Buildings of Canada, Canada being dependent upon these resources.
Is it not strange that the flags and heraldic emblems of the provinces and territories of Canada, and indeed our national currency, that they recognize the importance of Canada’s land and water, plants and animals, and the Canadian constitution does not. We think this is rather strange. Is it an accidental omission? We think not, for the substance of our brief was printed last summer as an editorial article in the Globe and Mail and distributed to all members of the continuing committee of Ministers on the constitution and to other politicians as well.
It appears that they have considered maintaining Canada’s national heritage as a fundamental principle on which Canada is to be governed, and rejected it. We question why.
The need to affirm a national commitment to better management and use of Canada’s natural resources is emphasized by placing the following two quotations in juxtaposition. The first is by a poet, W. H. Auden, 1952, a British-American poet whose brother, incidentally, worked in the forests of Ontario and a town in Ontario is named after him. And I quote:
A well kept forest begs our lady’s grace. Someone is not disgusted or at least is laying bets upon th human race, Retaining enough decency to last;
The trees encountered on a country stroll reveal a lot about a country’s soul. A small grove massacred to the
last ash, An oak with heart rot give away the show. This great society is going smash. They cannot fool us with how fast they go, How much they cost each other in the gods; A culture is no better than its woods.
And this is reflected again in this: “A culture is no better than its woods”.
The other quotation is by a politician, the honourable John Roberts, 1980 Placed Side by Side:
in Canada we have managed our forests for production when we ought to have managed them for renewal; we have been mining our forests when we should have been farming them.
The status of forest management in previous decades is not something that we can take a great deal of pride in. Accordingly, we recommend the following amendment to the resolution before the Senate and House of Commons respecting the Constitution of Canada: whereas Canada’s natural resources are the primary source of Canada’s political, economic and social strength, and whereas Canadians believe that our natural resources must be managed to benefit both present and future generations, and I think all of us here can agree with those, therefore we recommend a motion that Section 31(1) of this Constitution Act 1980 be amended by adding a new subsection (a) to read as follows:
The Government of Canada and the provincial governments are committed to (a) advancing the management and use of Canada’s natural resources to society in perpetuity.
We put this amendment forward in all sincerity to complete the resolution before you and to thereby make it more acceptable to the assembly and to the people of Canada. Resource management for sustained production is Canada’s options open.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Epp, followed by Mr. Blackburn.
Mr. Epp: Thank you, Mr. Chairman.
Gentlemen, the amendment that you propose for Section 31(1), which government would give you that commitment?
Professor Aird: I suggest that it would be the same government that gives the commitments to points (b) and (c) in the. . .
Mr. Epp: Do you believe it is possible for a government to give you that commitment?
Professor Aird: I suggest that if it does not, that we are in a rather shaky position.
Mr. Epp: Well, in a pragmatic sense, do you believe it is possible?
Professor Aird: Yes. l do not think we would be here putting forward this proposal if we did not.
Mr. Epp: Well, let us just take it in a practical sense. For example, this is a constitutional proposal which would bind all future governments. Now, would, for example, an individual who would feel that the government, or a government policy on either mining or forestry, just to give you two examples,
that that policy in the mind of that individual had not been advancing the management and use of Canada’s natural resources and was not meeting the needs of Canadian society and especially Canadian society in perpetuity, would that individual have redress to the courts?
Professor Aird: I suggest that that would depend upon how this was incorporated into the constitution, but I see that if we violated human rights or violated other things, the mechanism that this violation of human rights would be studied and evaluated, the same type of situation here. I see the opposition, for example, playing a role in ensuring that our natural resources are taken care of.
Mr. Epp: Well, with all respect, sir, I do not think that when we are looking at this, that we are looking at it in the same form as a statute where government and opposition have a very particular role, What we are looking at here is a constitution which binds all future governments and which gives the opportunity of redress to any individual, and I just do not see in the practical sense how that redress could be incorporated?
Professor Aird: I see it rather clearly, apparently I am not very effective at explaining how I see it, but I see that a constitution is a statement of principles on how Canada will be governed.
Mr. Epp: Sir, I understand that.
Professor Aird: And we believe this statement of principles is essential in the Canadian constitution or else the other things that we are striving to achieve in the Canadian constitution will not be achievable.
Mr. Epp: Well, sir, I am not trying to be rude in any way but I am sure we are not trying to grant civil rights to trees. What I am trying to get to is in some way you have to come to grips with the issue that it is more than just principles, if principles are violated in a constitution and in this section, the proposal that you make, somehow there has to be redress and 1 am just looking at it in a practical sense, if the government through its actions feels that that policy is valid, the people of Canada can judge either in the House of Commons or in the Senate or in a subsequent election whether or not that policy was acceptable, or through public pressure. However, if you put it in the constitutional framework you are adding another dimension and I do not see how that dimension would be operative.
Professor Aird: May I ask you, are you reflecting a concern about this proposal only? Do your objections not apply equally to the other (b) and (c) items? These are government activities as well, so how are you going to ensure that our governments will further economic development to reduce disparity in opportunities?
Mr. Epp: Well, I think if one takes a look at that principle exactly, the principle of equalization, we now already have a regime of equalization and I think members around this table, for instance, would want to go beyond simply the principle of equalization but also entrench equalization payments, that principle, government to government, but here you would have a right as an individual to literally charge the government with having violated the constitution on the basis of a policy?
Professor Aird: Well, I conceive of a policy which says that we will regenerate every acre that is logged. I see that as in the same category as your economic distribution and I could charge the government that does not ensure that every acre of Canada that is harvested is not regenerated, and that is the situation today. We have an incredible backlog of non-regenerated land and something must be done to focus attention on this and to make governments accountable.
Mr. Epp: Do we not do that through policies now, for example, the Environmental Department, the consciousness that has been raised in the public mind, for example acid rain is quite apart from a constitutional provision?
Professor Aird: We are not doing those things now.
Mr. Epp: Thank you, sir.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.
Mr. Blackburn, followed by Mr. Irwin.
Mr. Blackburn: Thank you, Mr. Joint Chairman. I have some questions I would like to address to both witnesses. First of all, I would like to thank them for appearing here this. evening and for presenting a very interesting brief.
I am primarily concerned with the environment, that is the reason I am here tonight to ask you some questions. I would like to deal specifically with acid rain.
However, I would assume, after hearing your brief, that you would attach as much importance to the environment as you do to the management in this case of the forests. Am I correct in that assumption?
Professor Aird: Yes.
Mr. Blackburn: Now, we have many problems in this country with respect to the environment. Acid rain at the present time has been proved scientifically injurious to some forest products or forest regions in this country, specifically northern Ontario, western Quebec, New Brunswick and Nova Scotia.
The problem facing, of course, the federal government is that we have environmental jurisdiction of the provincial as well as at the federal levels. Specifically, my question is this: would you, in your professional judgement, opt for federal paramountcy, as far as environmental protection laws are concerned with relation to the forests?
Professor Aird: We will both take a crack at it.
Professor Love: I think. Mr. Joint Chairman, with respect to problems in the environment it goes well beyond the boundaries of individual jurisdictions, particularly the provinces, and, of course, beyond the boundary of Canada, particularly the boundary between Canada and the United States.
So that the problem is one which cannot be solved in a narrow situation. Instead, environmental problems are becoming world-wide.
From the point of view of attacking these problems, we must think in terms of larger rather than smaller jurisdictions.
I know that my answer to your question, sir, would be that the Canadian responsibility in environmental matters would have to be paramount to those of the provinces.
Mr. Blackburn: The problem here is. as you know, when you say transboundary air pollution, that is commonly interpreted as being international, certainly with respect to acid precipitation.
At the present time, Canada is in discussions with the United States for an international agreement on transboundary air pollution. We also have a very significant transprovincial or interprovincial air pollution problem.
Our problem at the federal level is that so much of our environmental law is provincial. Frequently, responses from the House of Commons from various ministers of the environment will be, “I am sorry, that is under provincial jurisdiction.” For example, the Great Lakes should be federal, yet we have all kinds of pollution problems with respect to clean water which the federal government should be involved in; but they do not want to trespass on provincial rights.
What I am trying to elicit, I suppose. from both of you or one of you, but hopefully from both of you, is, first of all, do you have any suggestions as to how we could rewrite in general principles federal environmental laws which would have paramountcy over provincial and, obviously, international air pollution, and which adversely affect the forests to begin with, and, of course, we can extend this to agriculture. to water and so on.
What proposals could you make to the Committee?
Because, it seems to me that if we are going to deal with the management of forest resources, nonrenewable resources, we should give equal attention to the environment in which the forests develop.
Professor Aird: It is my view that it must be a shared responsibility. The provincial people are on the ground dealing with the problem. The federal government has its role to play as well. So I see a shared or concurrent responsibility.
Mr. Blackburn: At the present time we do have a shared responsibility, and very often we get nowhere, because there are jurisdictional dispute.
What I am trying this evening to elicit from you is some kind of a game plan or proposal which might eliminate this kind of friction or conflict between the federal government or federal authorities and the provinces which very often develops into nothing more than buck passing and which creates needless delay at a time when the acid precipitation crisis is becoming worse and worse.
Professor Aird: My own view on this is that l divide the environment into four sectors: the political, the social, the economic, and the environmental area.
Now, who is responsible for the political sector, for keeping track of it, for being sure that it is working? It is the leader of the opposition.
Who is responsible for the social aspects of making sure that the social things which are going awry are being looked at? Who is making the government accountable? That is the ombudsman.
Who is looking at the financial situation, the economic situation, to be sure that things which are going awry are straightened out? It is the Auditor General.
What we lack in this whole picture is an auditor general for the environment. We have different governements with responsibility but without accountability, We do not get any annual reports for the public to see just what is being done, or perhaps, more important, what is not being done.
So, I see in this environmental area that your government has the responsibility, the provincial governments have their responsibilities; but neither is really accountable as to which is which and this does not get ironed out.
Mr. Blackburn: This is precisely our dilemma, and I am asking you for some specific proposals as to how we solve it?
Professor Aird: My proposal would be for Parliament to create an environmental auditor general and have him report back to Parliament.
Mr. Blackburn: Do you mean an Auditor General or an ombudsman?
Professor Aird: Well it would be someone with a name which is different from either, but having the same responsibilities, playing the same role but in the environmental sphere.
Mr. Blackburn: And he would be responsible to the federal authority?
Professor Aird: Yes.
Mr. Blackburn: What happens if the provinces say, “I am sorry, but that is our jurisdiction; you have no control over it”? It gets us back to where we started off.
I am concerned about how we write this into this proposed amendment which you have brought before us this evening to the constitution. You talk about advancing the management and use of Canada’s natural resources to meet the needs of society in perpetuity, That is a lovely phrase; but I would like to know how we go about it, as far as the environmental aspects are concerned, because we have jurisdictional disputes and hangups and so on and so forth and buck passing at the present time.
Personally, I feel the federal government should have paramountcy as far as environmental protection is concerned; but how, from your professional opinion, and scientific opinion, would we, as legislatures, write this into law. That is really my question, and it has been for the last I0 minutes.
Professor Aird: Yes, and I guess I am not going to be much help on that one to you; because that is your responsibility,
I really believe, however, that our governments must recognize a commitment to do these things and to get with it.
Mr. Blackburn: I can assure you. Professor, that governments do recognize the importance of the environment. It is the jurisdictional problem that is the point.
Professor Aird: We do not see governments with the commitment to maintain the forest resources. We do not see the Canadian Forestry Service with a vigorous commitment to further forest research.
Mr. Blackburn: Well, Professor, I do not wish to contradict you; but for the first time in history and we are probably one of the few, if not the only country in the free world, which has a special Subcommittee of the House of Commons to address itself specifically and exclusively to the acid precipitation problem. So we are concerned. We want tough laws. We want tough laws vis-a-vis the provinces or the industries, whether they are publicly owned or privately owned. I am very concerned about it and was hoping we could get some kind of statement or idea from any one of you gentlemen this evening as to how, from a scientific or professional point of view, we might be able to go about it.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Blackburn.
Mr. Irwin: Professor Aird, you probably will not recall, but this is probably the acid rain committee that you addressed in Toronto. I was chairing it and Mr. Blackburn was there; J. C. Devost was the Clerk of the Committee; and if you had been here earlier, Mr. Fraser was there, and Ms. Campbell also. So it is a question of the same faces, the only difference being that we have moved over to Ottawa.
But I see we are having the same problem today that we had in Toronto, and that was to get some specific answers to some very serious problems.
Professor Aird: I think the problems you had were not just with me, but with a whole lot of speakers.
Mr. Irwin: You will recall that most of them had specific answers, and we had a difficult time getting you to admit that there was an acid rain problem.
Now, at that time you suggested that a few provinces, notably, New Brunswick, Ontario and British Columbia had announced their intention to maintain their biological resource base, and you were critical that they had not committed money to do the job.
Do you still feel that same way about these three provinces?
Professor Aird: I am sorry, but I did not hear the last few words of your question.
Mr. Irwin: You were very critical that they had not committed money to maintain their biological resource base. Has anything happened to make you change your mind? Have they improved? Has the situation deteriorated? Is it still the same, that they have not committed any money?
Professor Aird: The situation was that at the Acid Rain Conference I presented a brief called Extinction is Forever, being concerned about some of the species which have gone into extinction and are going into extinction on a world-wide basis.
I pointed out that the United States government has an endangered species group, where they are putting in tens of millions of dollars into research and the study of management of endangered species; by way of contrast, I was pointing out that only three of our Canadian governments have programs in this area. This is legislation, but the commitment of funding to this area is really very poor. So I was deploring this.
Mr. Blackburn: is that still the case?
Professor Aird: As far as I know, yes.
Mr. Blackburn: As I can recall it, you were very critical of the provinces at that time.
Professor Aird: I could also be critical of the federal government, because the federal government has almost no program in this area.
Mr. Blackburn: I was coming to that. On page 4 you say—and I quote:
Our federal government is even less progressive.
So, who are you suggesting should do the job that you want done, since they are both pretty bad, the provinces or the federal government?
Professor Aird: Well, once again, I see it as a shared commitment. But the point is that neither of them is doing it now.
In fact, it was private subscriptions from the world wild life fund which contributed to studies in the Canadian wild life service which led to the first status report on a number of endangered species in Canada.
Mr. Blackburn: You are suggesting basically a regneration program. Now, how will this be enforced?
Professor Aird: Well, things are happening now. Things are improving substantially.
Mr. Blackburn: My question is, how will that be enforced?
Professor Aird: For example, in Ontario they have made forest management agreements with companies, and the companies will be doing the regeneration. They are writing a contract with the government which will specify which acres will be harvested or planted and what degree of success they will have, and this will be evaluated and reported along the lines I was speaking about earlier, and this is reported by legislative requirement once a year to the provincial government.
Mr. Blackburn: I follow the mechanics, but I am having a great deal of difficulty in putting this in constitutional form. You write very well and speak very well; but we are not drafting poetry, and we have to put something in here that is very clear. I do not really know how we would enforce this as
constitutional law, the theory of regeneration. I agree with that.
But I just wonder if it is just the promotion of what you have said in Toronto, or whether you are really serious about putting this in the constitution.
Professor Aird: Do you mean serious about this phrase here? Mr. Blackburn: Yes.
Professor Aird: Yes, both Professor Love and l are very serious. and Dean Love has said the Canadian Forestry Association is supporting it, so, yes, we are very serious.
But the problem is that you would like me to tell you exactly how to put it in. and I am afraid I just do not have the constitutional law background to do it.
But we are putting forward this recommendation in this way, hopeful to have your authorities, who are able to do it, to do it.
Mr. Blackburn: But you are the expert in afforestation, and you are suggesting remedies which are very far reaching in effect, and I am wondering whether you have any concrete ideas as to how we can put it in the constitution and make it enforceable as a constitutional clause.
I am really interested in that because the time is now, because if we do not have the trees, or the natural resources, then we do not have to worry about whether we are talking French or English, really.
Professor Aird: That is our point. I think we will have to take it under advisement, and we will give it further thought and come back to you.
Mr. Blackburn: We appreciate that. We are going to have continuing hearings in Calgary and Halifax on acid rain, and maybe we could continue this debate further, because many of the things which you suggest, might go into the Clean Air Act and not in the constitution.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Blackburn. You have a question, Mr. Nystrom?
Mr. Nystrom: Yes. In suggesting an amendment to the constitution, you are saying we should be enshrining and advancing the management and use of Canada’s natural resources. Are you talking about renewable resources or non-renewable resources, or both?
Professor Love: I think most of our discussion here has been related to renewable resources.
Certainly from the point of view of management, the non-renewable resources are terribly important in the sense that they must be used, recognizing that they cannot be replaced; and therefore, their use must be carefully scheduled, so that they are used as effectively and efficiently as possible.
The renewable resources are different in the sense that we do have an opportunity. particularly in the forest and related resources, which include water and wildlife.
We do have, here, an opportunity to undertake management programs which will be available in the future.
I would like, if I may, to ask Mr. Blackburn a question respecting the detail with which he expects us to answer the question which he has presented.
What we are looking for in this recommendation is simply that the federal government and the provincial governments will recognize the importance of the natural resources to the future of Canada. We would, I am sure I speak for Professor Aird, we would be very happy, given some responsibility with respect to preparing some more detailed material that might be relevant to the question, but at this point what we are really talking about is that the drafters of the constitution will give some recognition to the importance of the natural resources to Canada, and that is all we have set out to do. We would be happy to do more if you want to give us a mandate to do it.
Mr. Blackburn: Professor Love, I cannot personally give you that mandate of course but I would certainly appreciate any information, any data, and hard facts that ‘you could send to the Committee to back up your brief more pointedly than you have had time to do this evening, and I appreciate the fact that you cannot put it all together and present it in a matter of half an hour.
I would simply like to close by saying that our natural resources are our national heritage just as the great art works in France are the national heritage of France. I am very sympathetic to your brief as are indeed most members around the table this evening.
Our dilemma, and I do not want to sound repetitious, is how do we translate your ideas, and your feelings I might add, into law so that we can hopefully someday eliminate this cross purpose jurisdictional dispute that we find ourselves in constantly between the federal authority and the provinces.
Specifically with respect to acid prescription, if you could send the Committee more detailed information, not specifically on acid rain, we have had a lot of that, but how we can apply that to our constitutional problems, whether or not it ever gets into the constitution, but at least into law so that the federal government knows precisely what it should be doing with paramountcy over the provinces.
The Joint Chairman (Senator Hays): Thank you, Mr. Blackburn.
Professor Aird and Professor Love, we are pleased that you were here tonight. On a bit of a positive note I happen to be an agriculturalist and I feel for your concerns. Maybe it is a bit early in our time. We are not like China, we have not run out of trees yet; we are not like the Sahara, we have not run out of trees yet; and we are a people whose food is plintiful but trees are very, very important.
I remember in the 1930s that all of our land in Western Canada was blowing and it was not until we restored many, many trees all aroung our farms that we now have sufficient moisture to grow our grain. I do not feel like all of the members, I think your brief is excellent, and I can assure you many people will be taking a look at it, and we look forward to any other information that you might send us. Thank you very much.
Professor Love: Thank you very much, Mr. Chairman for the opportunity to be here.
The Joint Chairman (Mr. Joyal): I would like to call now to the witness table the representatives of the Canadian Abortion Rights Action League please.
On behalf of all of the honourable members of this Committee I would like to welcome the representative of the Canadian Abortion Rights Action League. They are Ms. Wright Pelrine, Dr. Watters, Mr. Kellermann and Ms Cohen. I understand that Ms. Wright Pelrine will make the opening statement and may be followed by other members of her delegation, and that after that presentation you would be agreeable to receive questions by honourable members of this Committee.
Ms. Eleanor Wright Pelrine (Honourary Director, Canadian Abortion Rights Action League): Thank you, Mr. Chairman. I am Eleanor Wright Pelrine, an honourary Director of the Canadian Abortion Rights Action League. if I may correct the record, Marion Cohen is not with us tonight. Unfortunately she was not able to abandon her client and we have instead Rosemary Billings, a member of CARAL, Ottawa, and a volunteer with the Ottawa Rape Crisis Center.
May I also introduce my colleagues, Dr. Wendell Watters, Professor of Psychiatry, McMaster University, and author of the book Compulsory Parenthood and Mr. Robert Kellermann, lawyer in private practice in the city of Toronto.
I, Mr. Chairman, am a writer, broadcaster, community college teacher and author incidentally of two books on the subject of abortion, Abortion in Canada and Morgenthaler. I happen also to be reasonaly well qualified to discuss the subject, of a 48 year old women who is also a mother and a grandmother.
The Canadian Abortion Rights Action League has as its purpose to ensure that no woman in Canada is denied access to safe legal abortion. Our aim is the repeal of all Sections of the Criminal Code dealing with abortion and the establishing of comprehensive contraceptive and abortion services, including appropriate counselling across the country. CARAL regards the right of safe legal abortion as a fundamental human right.
I share the honour of being Honorary Director of CARAL with many distinguished Canadians whose names will be familiar to you including the honourable Iona Canpagnolo, Grace Maclnnis, former MP; Stewart Leggatt and the late Judy LaMarsh.
CARAL has many members across Canada, a total of 2,000 individual members and has as participants in the organization many affiliated organizations including just a few which I will mention to you: the Canadian Unitarian Council; Doctors for Repeal of the Abortion Law; the National Action Committee on the Status of Women, a federation of 150 affiliated women’s groups which recently appeared before this Committee; the National Association of Women and the Law and many other organizations.
However, many other organizations support our freedom of choice position on abortion. Included in that group are the advisory councils on the status of women, including the Canadian Advisory Council, the Quebec Advisory Council and the Saskatchewan Advisory Council on the Status of Women. with the Ontario and Nova Scotia Advisory Councils on the Status of Women; the Canadian Association of Obstetricians and Gynecologists; the Canadian Council on Social Development; the Canadian Federation of University Women; the Canadian Labour Congress; the Canadian Union of Public Employees; the Canadian Unitarian Council; the Federation of Women Teachers of Ontario; the Liberal National Party Convention of 1970; the National Action Committee on the Status of Women, of course; the National Council of Jewish Women; the New Democratic Party of Canada; Planned Parenthood Federation of Canada; the United Church with the YMCA of Canada Limited representing some 300,000 members across the country.
A 1979 Gallup poll in the Toronto Star says that 57 per cent of Canadians believe that the following statement is true:
The decision to have an abortion should be made solely by a woman and her physician
And the figure in 1979, March 31, was 57 per cent of Canadians. A total of 84 per cent, however, agreed that they would make an exception in the case of a woman whose mental and physical health is in danger. They disagreed that a woman and her physician should be solely responsible for the decision but they said they would make an exception in the case of a woman whose mental or physical health is in danger.
If I may I will turn to my colleague, Mr. Kellerman, who will discuss the legal aspects of our approach to you tonight.
The Joint Chairman (Mr. JoyaI): Mr. Kellermann.
Mr. J. Robert Kellermann (Legal Counsel, Canadian Abortion Rights Action League): Thank you. The purpose of CARAL. has already been made clear to the members. What I am concerned with is the. present constitution act of 1980 and in particular the Charter of Rights and Freedoms and we have some particular concerns about that Charter. Of course CARAL would like to see entrenched in that constitution certain rights of women, particularly reproductive rights which do not merely apply to women, but of course the rights to medically safe abortion and if the members read our brief, we state these things that we are concerned with. As well we are concerned with contraception, as has already been indicated; we are concerned with forced sterilization. We do not want it to appear that we are concerned only with the question of
abortion. All of these things have to be considered together and not in isolation.
However, our initial concern is with the poor drafting of this present constitution act and the Charter. We think it is poorly drafted and we think it is as a result perhaps of the fact that it has been done in rather a hurry. I know that the Committee’s time has now been extended but not for very long and in our view the process by which Canada is receiving a new constitution is one that is not really very democratic. There may be the appearance of democracy but unfortunately I think that the consideration being given to this entire constitution and to the Charter of Rights in particular is not sufficient, considering the importance of the subject that is being dealt with.
Considering that situation, our proposal is really that the members of the Committee reject the Charter of Rights and Freedoms and not recommend its passage in any way in its present form. We feel that in its present form it really represents a danger to the rights of the Canadian people and in particular the rights of women, the women concerned with their right to a medically safe abortion.
Particularly dealing with Section 7 of the Charter of Rights here you see the right to life mentioned and we are all familiar with that phrase, a phrase which is being used today to suggest that the fetus or the embryo have rights in law. This of course is not correct historically. These rights have never been recognized in common law or statutory law. In our present law, there is no recognition of the rights of the fetus or the embryo. There has to be a live birth in order for any rights to vest in the child. The child must be living, and have been born, in order for it to gain any rights.
Here we have in Section 7 the phrase everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Obviously any lawyer can make a case out of that and lawyers have tried to do that. In fact there is a case pending now, at least leave is being argued in the Supreme Court of Canada where someone is trying to argue that the right to life applies to the fetus or the embryo. The moment this legislation is passed there will be cases filed in the court, you can be sure, and litigation based on the argument that this phrase “the right to life” applies to the embryo or the fetus. Any lawyer worth his salt or her salt would of course take advantage of that phrase in this constitution.
We have already expressed the opinion and I think it is a fact that the majority of the Canadian people do not subscribe to that belief. It is a minority view and it is a view which should not be allowed to express itself as if it is an entrenched right in the constitution of Canada so in considering the way in which this document is drafted we would suggest that rather than Parliament allowing itself to be misinterpreted and rather than having Parliament legislate inadvertently without any intention of providing such rights that the Parliament include in this Charter of Rights and Freedoms a section to follow the present Section 25. Section 25 is not particularly significant. it is just that this is the general section of the Act and we suggest
that after the present Section 5 there be included a clause which would read something like this, I think it is phrased properly, that nothing in this Charter is intended to extend rights to the embryo or fetus nor to restrict in any manner the right of women to a medically safe abortion.
If that clause is placed in the existing Charter of Rights and Freedoms it will not provide any rights to women. It will only ensure that the intention of Parliament is not misunderstood. In other words, it will cut off the possibility of someone arguing in court that the right to life or the section which prevents cruel or unusual punishment or some other section of this Charter is somehow meant and intended by Parliament to grant rights to the fetus or embryo.
My belief is, and I think this is a correct belief, that there is no such intention in this Charter of Rights and Freedoms, that Parliament has no intention to entrench that right in this constitution and therefore in our view it would be a serious scare for people who are now in the position of legislating a Charter of Rights and Freedoms, knowing that there is ambiguity in the language of this Charter of Rights and Freedoms. to leave it open for lawyers and that minority that wants to create a right which is not recognized by the legislature, to fill the courts with litigation involving arguments about this language. We all know that this litigation is bound to arise unless this language is clarified, Therefore we argue let us have a clause in Section 25 which leaves no doubt that Parliament’s intention is not to create rights in the fetus or embryo. That section would not, as I have suggested, in any way change the law as it stands now in Canada today.
The issue of a woman’s right to an abortion or the denial of that right can be settled by other legislation. At this point we are arguing only that by putting this clause in you make it clear that this Charter is not speaking to that question and therefore you are not inadvertently creating rights that you do not intend to create.
The last thing I will say is this: of course CARAL takes the position and would like to see reproductive rights entrenched in this constitution. That is not what I have been speaking about to this point. We would like to see a special section which talked about reproductive rights, including the rights of women to a medically safe abortion.
However, my main purpose, at least, today in speaking to you is to emphasize that this language is completely open to litigation and to the argument that somehow Parliament intended to create rights in the fetus or embryo. and if Parliament does not intend that then we suggest they must include a section which explicitly states that.
Thank you very much for hearing me out.
The Joint Chairman (Mr. Joyal): Dr. Watters.
Dr. Wendell W. Watters (Honourary Director, Canadian Abortion Rights Action League): Mr. Chairman, I would like to speak for approximately seven minutes about the health
aspects of the issue of abortion. I know we are not here to talk about abortion or the present abortion law, but it is pretty difficult to deal with the issues that we are trying to grapple with without referring to them now and again.
I speak from the perspective of one who has a day-to-day working relationship with the people most affected by our present abortion law and by our institutionalized attitude towards sexuality and reproductivity. As a psychiatrist I consult to the Department of Obstetrics and Gynecology, including the family planning and abortion clinics as well as the infertility clinic. I work and teach in the human sexuality program at my university, training health care professionals in sex relationship therapy, and I also sit on the hospital’s therapeutic abortion committee for my work in family psychiatry has given me an insight into the plight of couples who have been in the past unable to take charge of their fertility in order to have children when they want them.
My work on the therapeutic abortion committee has made me as aware as many Canadian male can be of the suffering caused by unwanted pregnancy, often made unnecessarily worse by the workings of our present law.
At the 1974 World Population Conference in Bucharest, Canada, along with all of the other delegate nations except the Vatican, agreed to, and here I quote:
Respect and ensure regardless of their overall demographic goals the rights of persons to determine in a free, informed and responsible manner the number and spacing of their children, to encourage appropriate education concerning responsible parenthood, and make available to person who so desire advice and means of achieving it.
And I underline the word “means”. And that is the end of the quotation from the world population plan of action.
Many of the women presenting for abortions in Canada, as we know, are adolescent girls whose pregnancies can be traced largely to the sexual ignorance which we, all of us, continue to tolerate and some even promote in our educational systems, but the majority of women seeking abortions have been trying to prevent those pregnancies, they are truly victims of failed contraception.
Now, even with exemplary sex education programs, highly motivated couples and technologically sound contraceptives, we will never eliminate the need for abortion services. If these services are not legal and safe medically, we will see a return to the backstreet butcher and the carnage that prevailed before the change in abortion laws. This has actually happened in the world, in Romania during the 1960’s when that country was enjoying a very liberal law, and then because of the demographic anxieties of the government they tightened up on the law and the numbers of abortion related deaths shot up markedly.
So although the Bucharest declaration did not address the issue of abortion, it is naive to believe that the rights of couples to regulate their reproduction can be realized in the presence of a legal situation that makes safe medical abortions difficult or impossible.
In assessing the medical risks of abortion one must compare them with the risks associated with the use of contraceptives and with normal pregnancy. According to the population council, abortion in the first trimester of pregnancy, that is the first 12 weeks, carries with it the same risk to the woman’s health as the use of the birth control pill or the intrauterine device.
Second trimester abortions, that is from 12 to 20 weeks carry a slightly higher risk to the woman but still lower than the risks associated with normal childbirth.
As for the psychological effects of abortion, the incidence of post abortion psychiatric illness is significantly lower than the incidence of postpartum psychiatric illness, that is following childbirth. Transient psychological difficulties following induced abortion can usually be traced to factors inherent in the overall situation such as the attitude of the health care professionals or the lack of support from boyfriends or family. This was the finding of the WHO Committee which examined the whole question of abortion in 1978, or that is when the report came out.
There is strong evidence from studies in Europe, well designed, well controlled scientific studies, that women granted a legal abortion fare much better than women who are refused an abortion in the same legal jurisdiction. We also know from two of these studies that offspring born to this latter group of women, those that have been denied abortion, were disadvantaged in a number of areas when compared with the offspring of a control group of women who had not asked for an abortion. Hence, while legally induced abortion is a relatively safe procedure medically and psychologically, and again I would add provided the woman has been appropriately counselled, mandatory motherhood, that is the denial of an abortion for a woman who really wants one, is not good for women or for their children.
With this kind of scientific evidence how can we continue to be so complacent about the fact that largely because of the present abortion law voluntary parenthood is not a reality in this country. Our brief to the Committee asks only that the charter of rights not contain language that can be used in the future to make the situation worse than it is now for unwilling pregnant women. As one of my colleagues has said, we probably should be bringing to this committee a brief that asks you to make sex education a basic right, contraceptive a basic right as well as hassle free abortion services.
Finally I want to quote something from a speech given by the President of the Canadian Medical Association, Dr. W. D. S. Thomas. In his speech recently in Nova Scotia, he urged the government to repeal the present abortion laws so that it could
be a matter for decision between a woman and her physician. This is the position the Canadian Medical Association has espoused since 1971. He also urged the government to increase rather than cut spending for family planning programs, and he urged Canadian physicians to press on all fronts for better sex education programs in order to reduce the numbers of teenage pregnancies.
He said, and here i want to quote:
I know that the best sex education program in the world will not eliminate unwanted pregnancies, it will not eliminate the need for therapeutic abortion, but it will help.
Parenthetically I will say that there is evidence of that from Sweden:
We need an educational program that will not only transmit the necessary information to teenagers, but one that will alter the basic value structure of our society. if we talk about conception control in isolation, isolated from other basic issues and values of society, our advice will fall on deaf ears. We have to deal with feelings and emotions, we have to talk to them about relationships, about decision making, about short term and long term effects of decisions, we have to talk to them about respect, what it is, how you get it, and how you show it. We have to be honest and open with them about sexual exploitation, about peer pressure for sexual gratification and its effects on a person’s behaviour. We have to help them to clarify and adhere to their own personal values, we have to teach them that they have the right to say no, not just to sexual advances but to other things as well. We have to teach them about the different ways of showing affection and the advantages and disadvantages involved.
More importantly, we must do a better job of teaching them how to build personal relationships, to understand the mental and emotional needs of themselves and others. With these foundations in place, with the proper attitudes, if teenagers are sexually active they will use birth control because of self respect and a sense of responsibility.
I just want to re-emphasize that I think it is a mistake to separate the abortion issue from the issue of sex education and from contraception. Thank you very much, Mr. Chairman.
The Joint Chairman (Mr. JoyaI): Thank you, Dr. Watters.
Ms. Pelrine: Thank you. We would be pleased to answer your questions, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much Ms. Pelrine. I would like to invite Mr. Hawkes to open our discussion with our witnesses tonight.
Mr. Hawkes: Thank you, Mr. Chairman.
I would like to extend a welcome on behalf of the members of the Committee. You brought into, I think, very stark contrast for us some of the dilemmas that are involved in constitution making. I am sure that you are aware that Tuesday of this week we had the Coalition for the Protection of Human Life as witnesses before this Committee and their perspective is considerably different than the perspective you bring to us.
Ms. Pelrine: It is.
Mr. Hawkes: I would like to explore with you, at least in the beginning part of my question, the conundrum that you lay out for us with very stark clarity. We have had a system of government in this country essentially based on British common law, our rights have been protected through the evolution of events related to that law, we are facing now the constitution act 1980 which invites the Parliament of Canada, and subsequently the Parliament of Britain, to give us a different system where areas of jurisdiction that have through our traditions commonly been given to those we vote for or vote against and turn that over to the courts and in the final analysis to a panel of five of nine judges who have to vote in a certain direction, and the thrust of your brief is that we not put into this Charter a clause which, in your view, might provide that court with decision making power on the abortion issue.
Ms. Pelrine: I would like Mr. Kellermann to answer.
Mr. Kellermann: We are not suggesting that Section 7 be removed. We are suggesting that another section be added so that Section 7 cannot be misinterpreted, that is all.
We are just trying to clarify the language of Section 7 to avoid the situation where litigation can be brought arguing that a fetus or an embryo has not had the right to life.
Mr. Hawkes: Would this same logic, however, apply to another contentious issue in our society, the capital punishment issue?
Ms. Pelrine: Well, Mr. Chairman and Mr. Hawkes, my personal view is an anticapital punishment view. CARAL as an organization has taken no position on capital punishment but l can speak for the officers of the organization and I think all of the honorary directors with whom i have discussed it and their view is an anti-capital punishment view, too.
An interesting study was done in the United States by James W. Prescott on the correlation between attitudes toward abortion and capital punishment and with some rather notable exceptions, one the former Justice Minister, Otto Lang, most people who oppose abortion appear to favour capital punishment. Mr. Lang, of course, was the exception and I am sure there are others.
Mr. Hawkes: It may be through my wording but l did not intend to get us into the capital punishment issue so much as the issue of what parts of our morality. the morality that we choose in our society, should be decided by courts, and what
parts of our morality should be decided by those that we elect, and it is in that context that I think Section 7 might be used by some people to go to the courts, and Section 7 you have said can be used by people to go to the courts around the abortion issue, and I am really wondering whether you are saying you prefer legislatures to determine the conditions under which our morality is decided?
Mr. Kellermann: I personally prefer the most democratic means which would mean that the people of Canada have to some how participate in that process, and I think you can have a dangerous situation if you provide very generalized rights in the constitution or charter of rights and then leave it to the judges to sort of decide on the basis of their own personal biases, but here is a case where you are leaving the language wide open for the judges to deal with the question of abortion when I suggest Parliament does not want it dealt with in that manner.
If Parliament does not want the capital punishment matter dealt with by the courts in that way as well, then there should be something in the Charter specifically dealing with that as well, that the right to life does not mean that capital punishment cannot be administered in this country or the other way around, that at this point I would think that they would have to state that there cannot be capital punishment in this country. That is the law in this country at this moment at least.
Ms. Pelrine: Traditionally, of course, we in Canada have believed that law was made by parliamentarians, not by judges, and sometimes people who favour the freedom of choice position on abortion have been caught by that. My personal view is that I think I would rather take my chance with the parliamentarians, however much I may disagree with them on ocasion, than I would with the Supreme Court which has never had a woman on the Bench, for example.
My personal view is that there are some women indeed represented in Parliament and I think that number is increasing, and certainly I am much more interested in seeing the democratic process of having Parliament decide what the law should be.
Mr. Hawkes: If this Charter was to go forward untouched, if, would you then have a concern about the Canadian process, the way in which we select judges, as contrasted to the United States process where judges are chosen after considerable public examination, at lower levels through the electoral process, at upper levels through scrutiny in the Senate and so on.
In your view, a charter of this kind with words of this kind, the interpretation of it could be influenced by the background of the people we select as judges, therefore, if you carry the democratic principle forward, would you think we need some systemic change in Canada to provide greater public examination of those who serve on our Benches?
Ms. Pelrine: And perhaps greater public representation. As a Vice-President of the National Action Committee on the Status of Women I supported their recent representations to you about the make up of the Supreme Court of Canada, and indeed appointments to the Bench. However, that of course was when I was wearing my other hat.
Mr. Hawkes: There is another conundrum inside your brief, and in contrast to the testimony we had the other day, They wanted to protect the rights of the fetus, your brief clearly says to us: protect the rights of the woman.
There is another group involved in the abortion issue and that is medical personnel. Does your association have a position on their right to refuse to participate in any medical procedure, including the procedure of abortion?
Dr. Waters: As far as I know, I am just trying to search my memory now, I think the Canadian Medical Association does have a clause in its Code of Ethics that allows physicians to withhold these services in terms of abortion. I do not think any physician can be expected to perform any act that he finds repugnant, and I am quite sure that, again, I am speaking from memory, that the Canadian Medical Association does respect that.
Ms. Pelrine: That clause, however, goes on to say that should the physician, because of personal, moral, religious or ethical beliefs, be unable to perform a particular procedure, he or she is obligated to so inform the patient and to refer the patient to another physician who will perform the procedure. I am certainly prepared to accept that Code of the Canadian Medical Association.
Mr. Hawkes: Would the freedom of conscience, which is also contained in this charter, be relevant to that issue?
Mr. Kellermann: I think that a doctor might argue that he did not want to perform a particular operation or medical treatment of some kind on the basis of freedom of conscience, but that is fine, I do not think that in any way contradicts the position of CARAL, CARAL’s concern is that there be doctors available for the women who want to choose to have an abortion, and as long as that is guaranteed we are not in any way interested in forcing other doctors to involve themselves in that process. They just do not want other doctors standing in the way of women having that right.
Ms. Pelrine: And who indeed would want to submit to any medical procedure performed by an unwilling physician?
The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes. I would like to call now on Mr. Robinson, followed by Madam Coline Campbell. Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman. I would like to welcome the delegation to the Committee and indicate that I am certain that many women, particularly in Canada, are very glad that they have such effective spokespeople as the delegation appearing before us this evening.
I would also like to say in preface to my comments and my questions that I reject any label of pro-abortion, as I am sure you do as well. I consider myself advocating the right to choose, I consider myself pro choice, and I also consider, and I am sure you would agree, that I have a very deep reverence and respect for life and I want that on the record before I say anything further.
I would also like to indicate that it is the position of this party, and historically has been the position of the New
Democratic Party. you have indicated, for example, that Grace Maclnnis and my predecessor as Justice critic, Stuart Leggatt are honorary directors of your organization, that we support the position taken by the Canadian Medical Association and many other groups in Canadian society that the decision on this important question of abortion is one to be made by a woman in consultation with her doctor.
At the same time, naturally we share many of the concerns that have been expressed by your group and others about a number ‘or areas within this topic that is being discussed tonight. The concern, for example, about accessibility, the inaccessibility that was so vividly documented in the Badgley Commission report; the inacessibility in some areas arising from the unfortunate takeover of hospital boards by persons who are, rather than being committed to a broad view of health care in a community, are more concerned about a single issue. We are concerned about the delays as a result of some of the bureaucratic procedures which are entailed, and we recognize that the risks in abortion are greater when delays occur.
We are concerned, as the Badgley Committee was concerned about the lack of prevention in Canada.
We want the number of abortions in Canada to be reduced as much as, I am sure, you do.
But we recognize it is through preventive measures and through effective sex education and the availability of contraceptives that the number of abortions can be effectively reduced.
Finally, I am sure you will agree, that we share the concern that no child should be rejected, or indeed no abortion should have to be performed in a civilized society because a mother feels that she, from an economic point of view, simply cannot support that child.
A single parent with three or four children, living in poverty in some cases, should not have to make a decision that she feels that she has to abort because she cannot bring that child into the world. A society which would condone that is certainly one which we would seek to change.
Those are some of the concerns that I and the New Democratic Party have with respect to the existing law.
Now turning to your brief—and I appreciate the comments you have made in your brief, and I will not deal with the suggestion that, perhaps, we should entrench the right to reproductive freedom. Realistically, I do not think the chances of that are very great.
But what I understand you to be saying is that this Charter of Rights should not at all prejudice access to abortion or—at least the position you are taking—indeed entrench the right to abortion; that it should be neutral in effect.
Your concern, as I understand it, is that maybe, just maybe, some court may interpret certain of the provisions, particularly Section 7, in a way which would restrict or perhaps effectively deny abortions to Canadian women.
Now, looking at your brief, I certainly can understand the concern that you have expressed particularly with respect to Section 7.
In questioning the earlier witness, I suggested that perhaps the principles of fundamental justice with respect to the right to life might be construed by a progressive court, at least, as ensuring that no women in Canadian society, particularly a poor woman, should be forced to go to the back street butchers or indeed to be forced into a situation of a self-induced abortion.
Now that might be considered to be a principle of fundamental justice, but frankly, as you have indicated, we have a bench, a Supreme Court of nine men, and with no disrespect, I say that certain recent decisions—particularly on rape—might give one cause for concern as to their interpretation of these provisions.
So I share your concern about the wording of this Section; but I wonder whether, rather than introducing a specific paragraph, as you are suggesting, following paragraph 25, if you would care to comment, perhaps Mr. Kellermann or one of the other witnesses, on the suggestion made by some that, by changing the word “everyone” to the words “every person”, that we would be dealing with the concern you have expressed?
Mr. Kellermann: I am absolutely certain we would not be dealing with the concerns we have expressed if that were the only revision to be made.
In fact the difference between “everyone” and “every person” is fairly meaningless, and I do not know of any case law or statute which really makes a significant distinction between those two terms. ‘
Whether it said “every person” or “everyone”, the same argument could be made by those who wanted to grant rights to the fetus or embryo.
There is no significant difference between those phrases. The other problem is that it would then cover only this Section 7, and I think there are other sections in the Charter which might be open to abuse as well.
So, by putting it after Section 25, you would avoid that problem completely. It would be stated specifically. You would not be playing around with it. You would not be hoping to avoid the problem by changing one word. You simply state explicitly that this Charter is not meant to grant rights to the fetus or the embryo, and not meant to deny a woman the right to an abortion. If stated in that way, then there is no confusion, there is not room for argument as to whether “everyone” is different from “every person”. It is as simple as that.
Mr. Robinson: Are you aware of any jurisprudence in Canada in which the word “person” has been extended to the unborn child or to the fetus?
Mr. Kellermann: It has never happened. In fact, the law at the present moment does not extend it to the unborn fetus or the unborn child.
There is law which recognizes, even in the passing of an estate, that once the fetus enters the world, once there is a birth, then certain rights can vest; but it is contingent upon that fetus being born and becoming a person, alive and independent of the mother.
But nothing has extended it back before that time, as far as I know, in any area of the law, whether it is criminal or other areas, estates, or property.
Ms. Pelrine: Moreover, there have been some very alarming lower court decisions depriving women of access to abortions. There was one in Ottawa in 1972 where an injunction was granted to prevent an Ottawa woman from obtaining an abortion, and there was another last year in the Atlantic provinces where the same thing happened.
Mr. Robinson: Thank you, Mr. Joint Chairman.
I think the Committee will certainly be examining very carefully the legal position on the question whether the word “every person” as opposed to “everyone” would have any legal effect.
I do respect the suggestion made by Mr. Kellerman, but I know that a number of other groups have received legal advice to the contrary.
So we will be examining the question.
Mr. Kellermann: I do not like to insult their lawyers, but really I doubt any lawyer would argue with me that it would be preferable to have the clause that we are suggesting and I think they are trying to avoid the issue by suggesting you can just change that one word, really.
Mr. Robinson: Well, I am not going to get into a debate with you on the subject.
But I would just like to ask one final question, if I may.
It is simply this. A group which appeared before us earlier this week, suggested that the Charter of Rights should be amended in such a way that no Canadian woman should ever have access to abortion, even in cases of rape or incest.
What would be the effect on Canadian women if an amendment were passed to this Charter denying completely all access to abortion in Canada?
Dr. Watters: Well, judging by what happened, as I said before, in other countries, notably Romania—and the situation in North America is a little different: first of all, those that could afford to would go to the United States as many still do under conditions as they prevail now. I think the illegal abortionists will begin to flourish again in this country. There can be no question about that, because that is what happened in Romania, and with it the incidence of pregnancy-related morbidity and mortality shot up remarkably.
I think many of them would be compelled to carry the pregnancy through to term, and we have the same sort of situation I have described earlier where both the mothers and the off-spring have shown just not to do very well in a number of instances.
So I think we will have a pretty desperate situation.
Mr. Robinson: Thank you, Mr. Joint Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
Miss Campbell, followed by Mr. Dantzer.
Miss Campbell: Thank you, Mr. Chairman.
I, too, would like to thank you for your brief here tonight. I have a few questions which I would like to put to you and they concern some of the comments which you have made. In my opinion, the problems result from the unwanted pregnancies, and a lot has to do with society’s attitudes to birth control, as well as its attitude towards the unwanted pregnancy, because the support systems are not available in society for the person who is going to have that extra child and who cannot afford it; as well as some of the old attitudes towards the woman who is pregnant without any support system at all.
Aside from that, I would like to know a little more as to how far you would like to go in advocating birth control.
Now, I am not talking about the person who is pregnant; but how far do you go in asking provincial governments to get into the role of birth control and of informing people of the necessary actions that should be taken?
You have mentioned your attachment to family planning and so on; but it seems to me that, as a woman, and looking at the public in that fashion, I do not see the world changing. Yet, I think the role of those who advocate the right to life and the role of the pro-abortionists, have so polarized that they have not been able to put their energies into obtaining more information.
Perhaps you would like to comment on this.
Ms. Pelrine: First of all, this group is not a pro-abortion group, but is one which is in favour of freedom of choice; and CARAL has always favoured freedom of choice on the abortion issue. We are by no means pro-abortion.
However, we must talk about the responsibility of government both at the provincial and the federal level in funding contraceptive education in this country and in making contraceptives available on a community level in the neighbourhood, not through hospitals to which sick people go; and their records at the provincial and the federal level have been abysmal.
Now, in regard to CARAL’s position on contraception and family planning and sex education, our position is clear.
It is not, I regret to say, equally clear that those groups who are opposed to abortion for anyone at any time. under any circumstances, also favour family planning or sex education. In fact, the policy of one organization affiliated with the antiabortion groups, Birthright, includes the following position in its constitution: that the policy of every Birthright Chapter and every one of its members and volunteers in all the Chapter’s efforts shall be to refrain in every instance- from offering or giving advice on the subjects of contraception or sterilization and to refrain from referring any person to another person, place or agency for this type of advice.
In our view, Mr. Chairman, it is ironic that those organizations which oppose access to safe medical abortion also oppose, in our view, all of the reasonable alternatives to abortion.
Miss Campbell: Our time is limited, and l was not in fact going after you as a group as to whether you were pro-abortion or not; but I think the general public would have that tendency.
Dr. Watters, I wonder whether or not you see a medical role in birth control, whether or not doctors should not have it available within the office for everybody who comes into the office, it is not there; you must ask for it. There is intimidation, shall we say, on women. There does not seem to be any direction from the medical society of Canada in that direction; yet you said tonight that they are advocating a broader basis for abortion.
Dr. Watters: l was quoting from a speech of the President of the Canadian Medical Association. He said many other things in his talk and he spent some time talking about the need for improved contraception and more government funding for this.
I am sure he would agree with this. it is a question of improved training of medical students, so that they can deal with this issue.
We devote a lot of time in our undergraduate program to the training of students in human sexuality, because you have to be able to talk to couples about sex before you can talk to them about contraception.
Miss Campbell: And individuals.
Dr. Watters: Yes. There is a move afoot in the medical profession to improve this issue of contraception.
Miss Campbell: l have to take exception that you may have other statistics. But you made a statement tonight that the majority of abortions in Canada was because of failed contraception.
In other words, if l were to look at the statistics for British Columbia in 1977, there were 11,271 abortions; 30 out of 100 live births were abortions.
Now, can you tell me that was a failure in the contraception, and you cannot then relate it back to the need for birth control and a wider knowledge of that?
Dr. Watters: I am not sure how much you do by increasing the knowledge base for people, because you are dealing with a very complex situation, A human animal is a very complex animal, and the way we have all been socialized around the issue of sexuality—and I must tell you we are continuing to socialize our young people in the same way—does not lend itself very well to people assuming the kind of responsibility that is necessary in order for them to really make the best use of the contraceptives we have to the limit of their technological perfectability.
Now it is a question of what you call a woman who forgets to take a pill or goes away for a weekend and does not take her pills with her. is that a failed contraception, or do you call it user failure? What do you call it?
When I made the statement I was talking about our own experience at McMaster and the majority of women who come looking for abortions, in my book. one way or another, are examples of failed contraception.
Miss Campbell: Whether or not there was contraception could be debated too.
Dr. Watters: Of course it could be. You can only go on what the patient tells you.
Miss Campbell: I would like to go into your brief a bit farther, and I would like to ask you if you think that there is any life at all in the embryo or fetus at any stage of the pregnancy? What I am asking is: at any stage of the pregnancy, would you deny that there is life? You ‘say definitely not to extend the rights of the right to life to the embryo or fetus. I am asking you at any stage in the pregnancy whether you say there is life?
Dr. Watters: There are two ways I can answer that. One is that the Canadian Medical Association has said that after twenty weeks gestation an abortion should not be performed, simply because you are getting close to the gray area where the viability becomes a problem, where the fetus could survive outside the woman’s body, and you do not want to do anything like that.
So, in terms of life in that sense, yes, twenty weeks is the cut off period set by the Canadian Medical Association.
In terms of life in another sense, the intrinsic value of the fetus, I have to take the personal position that the value ascribed to that fetus prior to the point of viability, because at the point of viability is just not the woman’s right or the couples problem, but it then becomes a totally different situation; but prior to that, I have to take the position and go along with the value that that woman ascribes to that fetus.
It seems to me that it is very presumptuous if I could assume and ascribe a higher value to that fetus than she does, and then once I have made it clear that it is too late for her to get an abortion or I have acted in a way which prevents her from getting an abortion. then I back out of the situation and assume no responsibility whatever for the subsequent life of this infant when it is born.
So that is the answer I give to your question about life.
Ms. Pelrine: The United States Supreme Court in its Rowe versus Wade decision, concluded that in the first trimester of pregnancy, the state had no interest in discussing the question of abortions; in the second trimester, the health of the mother was to be a consideration, and in the last trimester there was to be the interest of the unborn child.
Mr. Kellermann: Perhaps I can take that further. In that decision, the court dealt with the matter in this way: They said it should be sufficient to note briefly the wide divergence of thinking of this most sensitive and difficult question. It said there has always been strong support for the view that life does not begin until live birth. This was the believe, they said, of the Stoics and it appears to be the predominant, though not the unanimous attitude of the Jewish faith; it may be taken to
represent also the position of a large segment of the protestant community and so on.
The fact is that there is great disagreement and the majority of opinion has been to consider life to be at live birth.
It is for that reason that there is such wide divergence of opinion, that a minority decision should not be imposed on the Canadian people in a Charter of Rights. That is the Supreme Court of the United States taking that same position, and it does not seem to be such a radical position.
Miss Campbell: I think you are now in direct opposition where you mentioned the Supreme Court of the United States on another case here tonight in your brief.
Mr. Kellermann: No.
Miss Campbell: The last point I would like to make is that you talk about your amendment after pararaph 25. It says that nothing in the Charter is intended to extend rights to the embryo or fetus, nor to restrict in any manner the right of women to a medically safe abortion.
Further down you suggest that such an amendment would not change the present laws concerning abortion, but would prevent any clause in the Charter from being used to limit the presently lawful right of women to an abortion, and it would serve to ensure that the Charter does not speak to the issue of abortion at all.
It seems to me that there is a contradiction, because you are putting into the Charter specifically—you would ask to put in terms which specifically talk about abortion, a medically safe abortion.
Mr. Kellermann: They use the word but it means what is being said is that this Charter will not in any way grant rights to the fetus or embryo nor if it said that it would in no way grant women the right to an abortion either. It is basically, when you say it does not speak to the issue. . .
Miss Campbell: That I could dispute, I do not want to get into a legal dispute on whether or not mentioning abortion does not bring in the whole concept that you are allowing a medically safe abortion, but my main concern there is that you are therefore excluding the role of the father of the child totally in this section. In other words, you are saying to us in this, the right of a woman to a medically safe abortion still remains no matter when the abortion is performed, up to the mother.
Mr. Kellermann: I do not think that is what this phrase says, I am sorry.
Ms. Pelrine: I do not think that is what the phrase says either but I would like to comment on that because what you have raised is a fairly standard argument against the right of access of women to safe medical abortion.
Ideally of course as in any relationship we would hope that the two people in the relationship could agree about the matter of terminating a particular pregnancy but I submit to you that if they cannot agree then the relationship is already in desper-
ate trouble and since women are the ones who have the enormous task involved in mothering, that the right of decision must be the right of a woman in consultation with a physician.
The Joint Chairman (Mr. Joyal): Merci Madame Campbell. Mr. Dantzer.
Mr. Dantzer: Thank you, Mr. Chairman, I will try to be very brief, in fact I will be very brief.
First of all, in all fairness to the witnesses I would like to identify my bias as they have identified theirs. I am one of those who believe in the right to life and believe that that right should be extended to embryos and fetuses.
Having said that you will not be surprised that the only good thing that I can say about the position that you are taking is that I hope that you hold it with the sincerity and good faith that I hold the position I take.
I would also like to pursue very briefly something Miss Campbell pointed out that in fact the amendment that you propose certainly does bring to this Charter the issue of abortion and I disagree entirely when you say that that amendment would serve to ensure that the Charter does not speak to the issue of abortion at all. It certainly does, if you put that amendment in it, because then it precludes any other interpretation of Section 7 except the one you wish, and the one that supports your position; so it most certainly does affect that interpretation.
I do not propose to go into the argument of the pros and cons of abortion, as some have done at this particular stage. I do not believe that this Committee has a mandate to decide that question. That issue, if it is going to be decided at all in our land will presumably, if this Charter does not go through, be decided by Parliament and that is where it should be decided.
Mr. Kellermann: That is the point we are making.
Mr. Dantzer: However, if the Charter does go through let me make it clear that the thrust of the Charter is to place the decision of many of our social values including this one in the hands of the courts, in the hands of the judges presumably, and that is where the decisions will be made and that is what the thrust of any Charter of Rights does and it will do it in this case. Therefore I think this Committee would be very poorly advised to tie the hands of those judges, to try to define what they get out of Section 7. That is up to the courts, if we in fact pass this Charter, as it is up to the courts to define many, many other rights that we have placed in here and many other social consequences which flow from trying to verbalize on paper rights which we all have as Canadians.
That is the issue that I wish to make with you. I think that we first of all have not got the mandate to decide the question of abortion in this Committee; secondly if we go for a Charter of Rights we should not tie the hands of the judges and prejudge or preinterpret for them the rights which we have placed here.
Mr. Kellermann: I think you are right when you say that you do not have the mandate and that is why we are suggesting that this section be put in there and what you are trying to do by arguing against it is to leave it open to a judge who
favours your view to find that the right to life does include the fetus or embryo. By leaving it open for a judge to do that, you are leaving it open for it to be decided by a judge and not by Parliament, whereas Parliament does not hold that position at this time and that is why you must put this clause in there so that if it is ever to be decided it will be decided in Parliament.
What you are hoping for is that some judge will support the minority view that you hold, whereas we are taking the position that it should be excluded from this Bill of Rights so that if it is ever to be decided and the law is ever to be changed it will be decided in Parliament.
All we are arguing for is the status quo, that is all; but you want to leave an opening so that some judge will support your point of view. We are not arguing for an opening for a judge to support our point of view, and you want the decision to be made in the court because you are more hopeful that it will be made there as a minority position is more liable to dominate in court than it is in Parliament.
Mr. Dantzer: Let me reply by saying I disagree first of all that my position is necessarily a minority view. I do not think it is.
Mr. Kellermann: It is. There is no question of that.
Ms. Pelrine: The gallup poll suggests it is.
Mr. Dantzer: Whatever you have said in defence of your position can be reversed. I think it is up to the courts to decide how to interpret this particular section and any attempt you make to prejudge that is obviously attempting to get us to back up you in your position; and we have no mandate to do that.
Mr. Kellermann: Let me say this, if you thought that that language could be used for a woman to argue that she had the right to an abortion you would be pretty quick to suggest that there be a section in here to prevent that.
Ms. Pelrine: May I point out, sir, that I find the prospect that these matters should be decided by judges as the courts are presently constituted rather terrifying. As I said earlier, I would prefer to take my chances with Parliament, and in fact Parliament in 1969 passed the existing law.
I do not agree that the existing law is adequate. However, access is more adequate under the existing law than it would be if the fate of women who are unwillingly and unsupportably pregnant were left to the Canadian courts.
Mr. Dantzer: Then you should be coming before this body and arguing that there should not be a Charter of Rights and we should proceed with the. . .
Mr. Kellermann: That was our initial position.
Ms. Pelrine: As I understand it the people of Canada are being encouraged to come before this body and express their opinion and that is exactly what we are doing.
Mr. Dantzer: I have no further questions, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Dantzer. We have overspent the time that we had on our agenda to have that exchange of views and opinions’
I would like to, on behalf of Senator Hays, the other Joint Chairman, and honourable members of the Committee to thank Mrs. Eleanor Wright Pelrine, Dr. Watters, Mr. Kellemann and Mrs. Rosemary Billings and to remind them that each time that Parliament has had to take a stand on the very controversial issues of death penalty or abortion it has always been open to a free vote. Those are very exception questions in the sense that each member of Parliament and honourable senators usually follow the line of their party but on those two specific issues there are free votes which means that one votes according to hiw own conscience and to his own set of values.
We are pleased that you came to us tonight to express your own views because I think that it would be in a way something of great controversy if we would have to take a final decision on the constitution of Canada with a question implying that we would have to vote too according to our own conscience.
Thank you very much
Ms. Pelrine: Thank you, Mr. Chairman.
The meeting is adjourned until 9:30 tomorrow morning when the representatives of the Canadian National Institute for the Blind will be appearing.
This meeting stands adjourned.
From the Club Media of Canada:
Mrs. Esther Crandall, President;
Miss Alison Hardy, Historian.
From the Canadian Association of Lesbians and Gay Men:
Peter Maloney, Member of the Executive Committee;
From the Canadian Association for the Prevention of Crime:
Mr. W. Frank Chafe, President of Association;
Professor Fred Sussman, Chairman of the Committee on Legislation;
Dr. Tadeusz Grygier, Member of the Committee on Legislation.
From the Canadian Committee on Learning Opportunities for Women:
Mary Corkery, Coordinator;
Linda Ryan Nye;
At 8:00 p.m.
Professor P.L. Aird;
Professor D.V. Love, Faculty of Forestry, University of Toronto.
At 9:00 p.m.
From the Canadian Abortion Rights Action League:
Mr. J. Robert Kellermann, Legal Counsel;
Ms. Eleanor Wright Pelrine, Honorary Director;
Dr. Wendell W. Watters, M.D., Honorary Director.
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