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 29 (18 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 29 (18 December 1980).
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HOUSE OF COMMONS
Issue No. 29
Thursday, December 18, 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 18, 1980:
Mr. Robinson (Burnaby) replaced Mr. Nystrom;
Mrs. Mitchell replaced Mr. de Jong;
Mr. de Jong replaced Mr. Fulton;
Mr. Nystrom replaced Mr. Manly;
Miss Campbell (South West Nova) replaced Mrs.
Mr. Henderson replaced Mr. Lapierre;
Mr. Kilgour replaced Mr. Crombie;
Mr. Ogle replaced Mrs. Mitchell;
Pursuant to an order of the Senate adopted November 5, 1980:
Mr. Nystrom replaced Mr. Robinson (Burnaby);
Mr. Allmand replaced Mr. Henderson;
Mr. Hovdebo replaced Mr. Ogle;
Mr. Oberle replaced Mr. Kilgour;
Mr. Gingras replaced Mr. Gimaiel;
Mr. Lewycky replaced Mr. Hovdebo.
Senator Austin replaced Senator Bosa;
Senator Rousseau replaced Senator Bird;
Senator Phillips replaced Senator Roblin;
Senator Petten replaced Senator Theriault;
Senator Adams replaced Senator Lucier.
MINUTES OF PROCEEDINGS
THURSDAY, DECEMBER 18, 1980
The Special Joint Committee on the Constitution of Canada met this day at 9:37 o’clock a.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Hays, Lapointe, Lucier, Phillips, Rousseau, Stanbury, Theriault and Tremblay.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, de Jong, Epp, Hawkes, Henderson, Irwin, Joyal, Kilgour, Mackasey, McGrath, Mrs. Mitchell, Messrs. Nystrom and Robinson (Burnaby).
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 Church of Jesus Christ of Latter Day Saints: Mr. Bruce Smith, President of Toronto Ontario East Stake; Mr. Regan Walker, Executive Secretary, Toronto Stake and Mr. Maleolm Warner, President, Hamilton Stake. From National Anti-Poverty Organization: Mrs. J. Hartling, Executive Director. From Public Interest Advocacy Centre: Mr. Nick Schultz, Associate General Counsel. From Alliance for life: Mrs. Karen Murawsky, Past Vice-President; Dr. Paul de Bellefeuille, M.D., Associate Professor of Pediatrics (University of Ottawa) and Major John J. H. Connors, LL.B., Consultant. From Canadian Citizenship Federation: Mr. Nicolas Zsolnay, President; Professor J. B. Rudnyckyj and Mr. Eric L. Teed, Past President. From Federation of Independent Schools in Canada: Mrs. Molly Boucher, President; Mr. Patrick Whelan, Treasurer and Mr. Gary Duthler, 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.)
The witnesses from Church of Jesus Christ of Latter Day Saints made statements and answered questions.
The witnesses from National Anti-Poverty Organization and the Public Interest Advocacy Centre made1 statements and answered questions.
In accordance with a motion adopted at the meeting held on Friday, November 7, 1980, the Chairman authorized that the document entitled “Submission by the Public Interest Advocacy Centre and National Anti-Poverty Organization” be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-6”.)
At 1 :53 o’clock p.m., the Committee adjourned to the call of the Chair.
The Special Joint Committee on the Constitution of Canada met this day at 3:40 o’clock p.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Hays, Lapointe, Lucier, Phillips, Rousseau and Stanbury.
Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Hawkes, Hovdebo, Irwin, Joyal, Mackasey, McGrath, Nystrom and Ogle.
Other Members present: Messrs. Blaikie, de Jong, Loiselle, Miss MacDonald (Kingston and the Islands), Messrs. Manly, McLean, Roche and Rose.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Paul Martin, John McDonough and Louis Massicotte, Researchers.
Witnesses: From United Church of Canada: Dr. Clarke MacDonald, Senior Secretary-Office of Church in Society; Rev. Robert Lindsey, Associate Secretary-Division of Mission in Canada and Rev. Guy Deschamps, French-English Relations Officer. From Federation of Saskatchewan Indians: Mr. Paul Sanderson, Chief of Federation of Saskatchewan Indians; Senator John B. Tootoosis, Senator of Federation of Saskatchewan Indians; Mr. Kirk Kickingbird, Legal Counsel; Ms. Delia Opekokew, Legal Counsel; Mr. Rodney Soonias, Legal Counsel and Mr. Doug Cuthand, First Vice-President. From Indian Association of Alberta: Mr. Eugene Steinhauer, President; Mr. Charles Wood, Chiefs Constitution Committee for Alberta; Mr. John Snow, Chief from Treaty 7 and Mr. Willy Littlechild, Legal Counsel.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980, and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, I 980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)
The witnesses from the United Church of Canada made statements and answered questions.
In accordance with a motion adopted at the meeting held on Friday, November 7, 1980, the Chairman authorized that the document entitled “Brief of the United Church of Canada” be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-7”.)
At 4:53 o’clock p.m., the sitting was suspended.
At 5:45 o’clock p.m. the sitting resumed.
The witnesses from Indian Association of Alberta and from the Federation of Saskatchewan Indians made statements.
In accordance with a motion adopted at the meeting held on Friday, November 7, 1980, the Chairman authorized that the
documents entitled “Recognition and Entrenchment of Treaty and Aboriginal Rights and Indian Government within the Canadian Confederation” and chart entitled “Federation of Saskatchewan Indians (FSI)-Proposed Structure” be printed as appendices to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-8” and Appendix “CCC-9” respectively.)
At 7:31 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 8:10 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Adams, Hays, Lapointe, Petten, Phillips, Rousseau and Stanbury.
Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Gingras, Hawkes, Irwin, Joyal, Lewycky, Mackasey and Oberle.
Other Members present: Mrs. Mitchell and Mr. Rose.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Witnesses: From Canadian Consultative Council on Multiculturalism: Mr. Lawrence Decore, Chairman and Mr. Errol Townshend, Chief Editor of “Cultures Canada”. From Canadian Association of Social Workers: Dr. Richard Splane, President and Ms. Gweneth Gowanlock, Executive 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)
The witnesses from the Canadian Consultative Council on Multiculturalism made a statement and answered questions.
Senator Hays assumed the Chair.
The witnesses from the Canadian Association of Social Workers made a statement and answered questions.
At 10:45 o’clock p.m., the Committee adjourned to the call of the Chair.
(Recorded by Electronic Apparatus)
Thursday, December 18, 1980
The Joint Chairman (Senator Hays): Can I have your attention, please. We want to start as close to the time as possible so that we will give the witnesses all the time that they require.
This morning we welcome the Church of Jesus Christ of Latter Day Saints represented by Mr. Bruce Smith, Mr. Regan Walker, and Mr. Malcolm Warner.
If you would like to proceed, Mr. Smith, I believe you are going to do the honours.
Mr. Bruce Smith (President of Toronto Ontario East Stake, Church of Jesus Christ of Latter Day Saints): Mr. Chairman, honourable Senators, honourable members, we have been introduced as the Church of Jesus Christ of Latter Day Saints and we are pleased to make our submission to the Committee. I might just elaborate on the men who are with me, my associates. Each of us represents a Stake of the Church which is equivalent to a diocese in other faiths. Mr. Warner represents the Hamilton, Ontario Stake as Stake President; Mr. Walker represents the Toronto, Ontario Stake as Executive Secretary; and I represent the Toronto, Ontario East Stake as Stake President.
We apologize that due to time contraints we were not able to present our brief in both official languages and we trust that you will bear with us on that. Now, the presentation of the brief.
The Church of Jesus Christ of Latter Day Saints or the “Mormon Church’, is a Christian organization with roots in Canada which go back to the early 1830s. There are at present approximately 85,000 members of the Church in Canada, with congregations in every province and the territories. We deeply appreciate the opportunity to appear before this Committee and to comment on some aspects of the proposed resolution respecting the constitution.
At the onset, we wish to make it clear that as a church we take no position on the purely political aspects of the proposed resolution; our members are totally free to think and act according to their own individual wishes on those matters. Believing as we do that churches have a responsibility to provide and safeguard a moral framework in which their members can exercise their beliefs, we wish, however, to address some of the possible moral implications of the resolution.
Our basic concerns relate to the potential impact of certain proposals within the resolution on the sanctity and strength of the family, on protection provided by society to women and children, on the relationships between courts and legislatures in making legal policy, and on the inviolability of fundamental freedoms. We can perhaps best illustrate these concerns by examining specific sections of the proposed resolution. In doing so, we wish only to point out concerns, not obvious and totally identifiable dangers. Indeed, it is in the vagueness of the wording of certain portions of the proposed resolution that the
greatest dangers lie, because it is impossible to tell exactly what is meant or what was contemplated by the draftsmen.
Section 2 of the proposed resolution deals with fundamental freedoms. We applaud the apparent intention of the proposals, believing as we do that “no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property and the protection of life”. Yet we must admit to an uneasiness about the extent to which the proposed resolution actually safeguards the essential freedom it so laudably espouses.
Part V of the proposed resolution provides provedures for amending the constitution, either as a result of legislative resolutions or by referendum. These amending procedures apparently do not ensure that legislative action cannot sweep away those fundamental freedoms outlined in Section 2. We strongly believe that freedom of conscience, religion, thought, belief, opinion, expression, assembly and association must be very carefully safeguarded; subject only to the reasonable restraints commensurate with a democratic society, they must not be subject to the vagaries, no matter how well intentioned, of legislatures. Past history, our own and others, has taught us the need to place them above legislative action. Unless they are safeguarded, it would be possible, at some time in the future, for legislatures to deny them to one group or another in our society. The procedures for amending the constitution must, we submit, pay particular attention to the absolute need to protect those fundamental freedoms mentioned in Section 2 of the proposed resolution.
Section 15 of the proposed resolution is an attempt to ensure equality before the law and equal protection of the law. We fear, however, that in its present vague form it may have the very opposite effect. Of fundamental concern to us is its potential effect on the family. As a church we have deep and fundamental commitments to the family, upon which all other institutions of society depend. It is in the family that we best learn to work, to love, to forgive, to be committed to justice. It is the family which is the natural and fundamental group unit of society; to change it is to change society itself. Within the family, motherhood and children are entitled, we believe, to special care and assistance. Our concerns may be illustrated as follows:
First, in attempting to remove discrimination because of sex and age, Section 15(1) of the proposed resolution could end up, perhaps inadvertently, taking away from women and children traditional freedoms and practices they now enjoy. Husbands now are primarily liable for the support of their wives and minor children. If this liability is removed, in the name of equal treatment for both sexes, the protection afforded by this responsibility to mothers and children could seriously be weakened, with tragic consequences for both individuals and society. Women who prefer to remain at home and maintain a traditional family could be unable to legallly count on child support from their husbands. Great pressures could be brought to bear on a woman not to marry or have children, and to join
or remain in the labour force. The potential deleterious effects on family life seem obvious, and must be prevented.
Second, if the law must be undiscriminating towards sex, it could follow the laws outlawing wedlock between members of the same sex would be invalid. The argument of a homosexual male, for example, could be, “If a woman can legally marry a man, then equal treatment demands that I be allowed to do the same.” As a church we are totally opposed to the extending of constitutional protection to homosexual marriages. While it cannot be stated with certainty whether this or any other consequence will result from the vague wording of Section 15(1 ), the possibility cannot be precluded.
Section 15(1) would not provide traditional protection of women against military service. Although Canada does not at present have compulsory military service, the possibility of such being required in the future cannot be overlooked. If women were found physically qualified, they would, unless exemption is provided, be required to be treated exactly the same as men, including service in combat zones in time of war. There are other ramifications of compulsory military service for women which concern us. It is not unlikely they could be compelled, in the name of equality, to live in mixed housing, a situation which would violate the religious and moral ideals of many. These concerns about the need for the constitution to ensure protection of the privacy of both sexes of course go beyond military service, and extend into other areas of society, including college and institutional housing, mother /daugther and father /son activities, and many others.
The impact of Section 15 (1) on sexual offences against children cannot readily be ascertained, but could be extremely damaging. If children are not provided special protection by reason of their age, but are treated the same as adults with respect to sexual acts, what will be the impact on their wellbeing? As a Church, we deplore, in the strongest terms, sexual relationships outside of marriage. But perhaps our strongest condemnation falls upon those who abuse children sexually. These innocents require special protection by society against both hetero and homosexual offences.
The impacts of Section 7 and 15(1) of the proposed resolution on the rights of the fetus are at best unclear. Section 7 deals with the rights of life and security of the person. But nowhere does it define what constitutes a person. If the courts were to decide, for example, that a fetus is not a person, it would have no rights to life and hence the road to abortion on demand would be opened up. As a Church we are fundamen: tally and irrevocably opposed to abortion on demand, believing it to be among the most heinous of moral transgressions. When an abortion is performed, a life is lost. Anything which strengthens the already disturbing trends in our society favouring easy abortion is opposed by us. In our opinion, the proposed resolution must clearly and unequivocally bar the door
to those who favour abortion on demand. It does not now do so.
None of the foregoing should be construed as indicating less than a full commitment to the equality of the sexes. As a church we are fully committed to equal rights for women. The church recognizes men and women as equally important before the Lord and the law. Injustices to women before the law and in society clearly have occured and still occur. We deplore these, and counsel our members to work energetically for appropriate changes.
Nevertheless, we do not subscribe to the notion that equality before God and the law requires that men and women be treated identically. Reasonable and natural distinctions between the sexes, which recognize and retain the dignity, worth and individuality of both, must be permitted and indeed protected.
We note with approval that the rights and freedoms which the proposed resolution is intended to guarantee do not deny the existence of other rights and freedoms that exist in Canada, referring to Section 24. We think it essential to recognize that some of the inequities in society are the results of attitude; conversely, some of the rights and freedoms we now enjoy exist as a result of tradition, precedent and common acceptance, rather than as a result of detailed laws and regulations.
Finally, we must express concern about the possible effects of the proposed resolution on the relationships between courts and legislatures in making legal policies. The vagueness of the wording of key sections of the proposal, Section 15( 1), for example, will necessarily vest the courts with a potential for policy-making unforseen, and perhaps unforseeable, when the proposed resolution was drafted. We believe it important to recognize that we do not know what kind of content and interpretation the courts will give to the language of the proposal over the years it will be a constitutional document. No one denies, of course, the good intentions of those who drafted the proposal. But it will take time and extensive litigation before the precise meaning of the vague words and phrases contained therein becomes clear. Most importantly, we cannot foretell what directions those interpretations will take. While fully recognizing the seriousness of that problem, we are concerned also that the extensive litigation and legal interpretations necessary could further shift law-making power from elected legislatures to nonelected judges. It could further accelerate the trend to govern by judicial decisions rather than by passage of law, and upset the division of powers essential to any parliamentary democracy.
We have attempted, in this short document, to present some of the concerns held by the Church of Jesus Christ of Latter Day Saints regarding potential results of passage of the proposed Resolution respecting the Constitution. We present them for your careful thought and consideration, and trust they will be of value to you in your continuing deliberations on this fundamentally important issue.
Thank you. This concludes the reading of our brief.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Epp: Thank you, Mr. Chairman.
I want to thank the Church of Jesus Christ of Latter Day Saints for appearing today. I know it was short notice but I appreciate their coming.
I found, gentlemen, that your brief probably can be described in two words: one of perception of society, the manner in which you perceive society and the manner in which you want to retain the moral foundations of our society and in fact build on those moral foundations. That has my support and I know the support of my colleagues.
Secondly, the balance which I believe your brief shows, that while the Church has a very fundamental role to play for the preservation of the family and society as we know it, that is its traditional values; you also see a balance in terms of how government and Church, while separation must remain, that government and church do have roles that are not at cross purposes but should be complimentary, and for those two perceptions that you brought to us today, I want to thank you.
I would like to direct your attention, if I might, to the position that you take on family life. I think it is the first time that we have had that kind of approach before the Committee and it is helpful.
So, on page 3, I woud like to ask you to expand, if you might, on that last statement on Section A, the potential deleterious effects on the family life seem obvious and must be prevented. You give us some explanation prior to that statement but would you care to expand on that position, please.
Mr. Smith: Mr. Chairman, I think the text of our brief addresses this at some length, but just to expand as has been requested, we perceive equality of the sexes, and we have stated that, but while we see equality, we see some well defined roles which are biologically based and we believe divinely granted and supported.
So we see the sanctity of the women as something which is to be preserved and we see Section 15, particularly Section 15(1), as leaving this question open to interpretation which could be, as we said, deleterious to the family.
That is one position.
Mr. Epp: On page 5, I would think you would be tying the two together somewhat. While each stand distinctly on their own merits, your position on abortion, I am sure you recognize that the criminal code, at least at this point in time, recognizes that a person is a person only if that child is outside of the mother’s body.
For those of us who oppose abortion on demand, and in fact the abortion figures that are now before us, 60,000 deaths was il- commonly used figure, and new figures just released are now that we are up to 65,000, you are correct in my view when you say: an abortion occurs, a life is lost.
However, I am wondering if you could give us any help in terms of your perceptions that under the criminal code the definition of a person, is it your view that a definition of a person should then be changed and start as its beginning point conception; is that your position?
Mr. Smith: Mr. Chairman, this question is being directed to a layman, not a lawyer.
Mr. Epp: I am one, too, and I think that has some merit.
Mr. Smith: I must state that at the outset and I must also say that we are not professional clergymen either. In the Church of Jesus Christ of Latter Day Saints we are a volunteer clergy and each earns his living in another occupation, but given that preamble, the question is one I do not think we can answer.
I could answer by saying that no divine revelation has come to my attention that I am aware of as to when a life becomes a life, but I would like to be safe on the side of conservatism here and stay with the position that when an abortion is performed, a life is lost.
Mr. Epp: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.
Mr. Mackasey: Thank you, Mr. Chairman.
On behalf of my party I certainly want to welcome the representatives of the Church of Jesus Christ of Latter day Saints who have the admiration, I must say, of most people who have any religious bent at all, and I am from the riding of Lincoln and very familiar, of course, with the role of the church in the Hamilton area.
I share your view, and I am sure most of us do share it individually, that we must never allow ourselves to reach a state where we approve or condone abortion on demand. Your brief has made a very valuable contribution, and as far as I am personally concerned the idea of time in that I have been wrestling all week with the whole dilemma of collective rights versus individual rights and I have been locking particularly at Section 15 as group after group come here and quite legitimately ask to be included in that section and others for the type of protection which they presume the Charter would provide, and I have almost come to the conclusion as an individual, because I keep stressing I have no right to talk for my party, that possibly, and maybe you want to express an opinion, recognizing that you are not a constitutional lawyer, that Section 15 might be better if we were to simply say: everyone has the right to equality before the law and equal protection of the law without discrimination; because I am afraid when we get into race, national or ethnic origin, colour, religion, age or sex, the list could be endless, and leave the impression that it is not specific and the courts can presume that had we wanted clearly to relate discrimination to certain categories, those categories would be included, and that bothers me a little.
Do you feel that that would be a better approach?
Mr. Smith: Mr. Chairman, we presented our position that we would stay away from a political or specifically legal issue as not being competent to address those. I think the honourable member’s comment has merit and I would just leave it at that.
Mr. Mackasey: Well, you say on page 5 that the Church is fully committed to equal rights for women. If we then go back to Section 15, that seems to be consistent with Section 15 insofar as, shall we say, sex is concerned, unless you want to change the word “sex” to be specifically women, but how do you find that conflicts with the general statement of the Church: we are fully committed to equal rights for women?
Could I not come along and harrass you with the thought: well, yes, equal rights for women, what does that mean? What would your answer be?
Mr. Smith: Mr. Chairman, I have not quite followed the honourable member’s line of questionning, possibly he could phrase it more succintly.
The Joint Chairman (Senator Hays): He is not doing it in Irish this morning.
Mr. Mackasey: I did not hear what the Chairman said. He usually does not intervene at this stage and I was not listening. Would you care to repeat.
The Joint Chairman (Senator Hays): Yes. I said that you were not questioning him in Irish this morning. He did not understand what you said.
Mr. Mackasey: Well, that is the polite way of the Chairman saying I am not making any sense, which, coming from a man of his intellect, worries me some.
However, really what I was saying is that your brief expresses many of the misgivings in a very clear term an\! with great clarity that has been expressed by other groups here, and I use the word “groups” because we of course have had a representative of the Catholic educational system here who also expressed the same type of reservations about what we are trying to do, and their concern about individual rights taking precedence in the courts over their concept of the type of person or persons they want teaching their religious views to children, and I cannot ignore that concern of the Church anymore than I can ignore yours, simply because I was brought up with strong religious convictions which I do not appologize for and which I still have and still maintain, and I am sure that is true of a Jot of people. Nor do I pass judgment on those who do not.
So I have been wrestling with that problem and, really, what you have done is come along at a very significant moment to reinforce my doubts. Now, I do not pretend either to be a lawyer, I am a simple Irish peasant that made it back here thanks to the intelligence of the people in Lincoln, Hamilton really, and I am just wondering, for instance, how did your church deal with this issue in the United States? Perhaps we could ask what experience you have had as a church with the provision in the United States in their Bill of Rights?
Mr. Smith: I think I will, Mr. Chairman, turn this over to one of my associates. Mr. Warner would you like to answer that?
Mr. Malcolm Warner, (President, Hamilton Stake Church of Jesus Christ of Latter Day Saints): Mr. Chairman, if I can interpret what the honourable member is asking, I think if in Section 15 we conclude that as discrimination, we would
probably have the same concerns because we want to make sure, as we brought out on page 5 in (e), for example, that the fetus may be protected, so I am not sure whether putting a period fifteen words before the end really clarifies that subsection.
Mr. Mackasey: What it does is provide the courts with greater latitude in their decisions without being guided, in other words, they can use wisdom rather than direction. As your spokesman mentioned earlier, no one has been quite prepared to determine or define precisely the moment when a fetus is a person and I, too, err on the side of the conservativism, and we had an expert pediatrician a week or two ago talk precisely to this.
I know my time is nearly up. I wanted to ask you have you run into any difficulties in your religion with, for instance, the various provincial human rights commissions? Is there anything in their legislation that you have taken to task, or are worried about?
The Joint Chairman (Senator Hays): Thank you, Mr. Mackasey. Go ahead, Mr. Smith.
Mr. Smith: I do not believe that we have, Mr. Chairman, experienced discrimination under the law or an abrogation of individual rights, certainly not in this century, but the honourable member did ask if we had had experience in the United States.
We certainly experienced, in the early years of the church, a great deal of discrimination, even persecution; and I come back to the position that we have taken on this paper that we are concerned about the vagueness of the wording which could open to all kinds of interpretations in the future through the courts, and we would simply feel much comfortable and much more reassured if these kinds of decisions were to remain vested in the legislatures.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey. Mr. Kilgour.
Mr. Kilgour: I completely agree with your position with respect to abortion. I do not know whether any of you have spent time in the United States, with the judicial processes down there, the United States Supreme Court decisions with respect to a person and so on. Can you give us the benefit of any advice with respect to the American experience, regarding our situation in Canada and the constitution?
Mr. Smith: Mr. Chairman, I personally would hesitate to attempt to be expert on the American experience in the church and therefore I would decline to respond to that. If Mr. Walker felt inclined to participate here he might so indicate.
Mr. Regan Walker (Executive Secretary, Toronto Stake, Church of Jesus Christ of Latter Day Saints): Mr. Chairman, would the honourable member be good enough to repeat the question?
Mr. Kilgour: Have you any experience in the United States personally, any of you, or your Church, that could help us with
looking at this question of abortion for a Charter of Rights which we might develop for Canada?
Mr. Walker: Speaking for myself, I have not. I am afraid that we cannot help you, Mr. Chairman.
Mr. Kilgour: The other question is, do you feel that our Bill of Rights guarantees the tax exempt status for all churches, or threatens it?
Mr. Smith: Mr. Chairman, we certainly are pleased with our present tax exempt status. As to whether the constitution should guarantee that to us or anyone else we certainly ask for no special status and we, as part of our articles of faith, honour, sustain and uphold the Jaw; and whatever the law would dictate we would accept.
Mr. McGrath: Mr. Chairman, the last part of Mr. Kilgour’s question was the important part and I believe the witness may have missed it. The question simply was, if I can paraphrase him, does Section 1 of the Charter in your opinion threaten the tax exempt privileges that you now enjoy as a church; or have you had time to examine that?
Mr. Smith: Mr. Chairman, I certainly have read and studied all sections of this document. I fail to see …
Mr. McGrath: I am sorry, I said Section 1, I really should have said Section 2, Section 2(a) of the Charter.
Mr. Smith: Mr. Chairman, could we have a rephrasing of the question with respect to Section 2?
Mr. McGrath: My question is, does Section 2 of the Charter in any way threaten the tax exempt privileges that you now enjoy as a church, in terms of any question that could be placed before the courts; because freedom of religion means freedom not be exposed to religion in certain circumstances, in other words, no religion in terms of interpretation can be construed as a religion, for the purposes of this section.
Mr. Smith: Mr. Chairman, it had not occurred to us that this section would in any way threaten our tax exempt status, at least it had not occurred to me, and I do not see any inherent meaning in this. I think along with other sections of the Charter that the possibility for amendment could indeed threaten any of these sections and thereby affect the question before us.
The Joint Chairman (Senator Hays): Thank you very much. Senator Lapointe.
Senator Lapointe: Sir, you do not seem to have much confidence in the legislatures. Can we understand from your brief that you greatly prefer having your rights protected by federal authorities?
Mr. Smith: Mr. Chairman, I believe it was stated that we did not seem to have much confidence in the legislature. It was my understanding that our paper as we have submitted it indeed states our confidence in the legislature. In fact we came on in this document indicating that we had more confidence in the legislature interpreting the law than the courts, or in the providing the law.
Senator Lapointe: What do you consider as a reasonable and natural distinction between the sexes, and do you not think that women are able to make the distinctions for themselves?
Mr. Smith: If I heard the question correctly, Mr. Chairman, what do we think is a reasonable and natural distinction between the sexes, and then the second part of the question …
Senator Lapointe: Do you think that women are able to make these distinctions for themselves?
Mr. Smith: Mr. Walker has requested the floor to answer this question, and I defer to him.
Mr. Walker: Mr. Chairman. certainly women are ready and able to make any sort of natural distinction. That is not the problem that we are addressing in this brief. The problem is that perhaps the openness of the language of Section 15 could be subject to judicial interpretation such as would leave women and girls and children et cetera in certain instances in an unfavourable position under the law, and we are thinking in terms of such things as co-ed washrooms, housing institutions, the military, et cetera. In other words, there are no exceptions admitted in the language of Section 15 such as would comprehend a situation like that, if interpreted strictly by a court.
Senator Lapointe: You say that husbands now are primarily liable for the support of their wives and minor children but you know very well that thousands and thousands of fathers or husbands are not following that law. So if women do not have equal rights to find work to support their children what can happen? That is why we want equal treatment in finding a job, for example, to take care of the children abandoned by their father, as happens very often.
Mr. Walker: I guess, Mr. Chairman, Husbands are primarily de facto liable for the support of their wives and children. There is certainly some liberated legislation at the provincial levels, for instance, in this respect. However our quarrel is not certainly with the equal opportunity of employment for women. What is of concern to us is that under, once again, the open language of Section 15 that women might be liable for the support of their husbands. That is more of a concern to us than that women might have an equal opportunity for employment. We are certainly in full agreement with the honourable member’s expression of concern that women be given an equal opportunity for employment ans advancement, in that respect.
Senator Lapointe: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Senator Lapointe.
Miss Campbell: Could I ask a supplementary on that?
The Joint Chairman (Senator Hays): A real short one.
Miss Campbell: Real short, is right. Just on the background of women and men, when the Human Rights Commission came before us they gave us a couple of clauses, and I would just like to know if you have seen them or not. Have you seen the Human Rights brief?
Mr. Walker: No.
Miss Campbell: They more or less said that the Charter would guarantee equal rights to men and women, of the rights and freedoms under the Charter. I cannot see that that would go against anything, just giving equal rights of the freedoms. Then they went down and they changed Section 15(1) and they said that everyone has the right to equality under the law and before the law and to equal protection of the law without discrimination. I think I adlibbed “before the law” but under the law and to equal protection without discrimination.
They gave a third section to section 15, which I wonder if this would not take care of the fear of the family being eroded, the idea that I personally feel that it is true that men are responsible for the family, perhaps in one aspect of it, but I would like to think that both men and women are responsible for the family together, and for taking care of that family.
Section 15(3) says that this Section does not preclude any legislative distinction which is justifiably necessary for reasons of compelling state interest, and I would ask you to answer this question yes or no, whether or not you would think the interests of the child or the children of the family would not be protected if the legislature so deemed it necessary and it could come in under Subsection (3)(ii) to perhaps compel the husband to be liable or one parent or the other.
Mr. Smith: Mr. Chairman, we reiterate the position that this, as the honourable member has asked, this is not guaranteed in the vague wording of this Charter.
We again come to our position that we would support and sustain and laud the rights of all individuals. It is the document before us that would appear to possibly errode some of those rights and we would like to have you examine theses. We respectfully submit that we have brought this here today to ask you to put it before re-examination, that some of the areas that would leave us open to the pitfalls that have been mentioned would be looked at with a view to avoiding the problems that have been raised.
We have appreciated the opportunity to make this submission before the Committee. We have been grateful for the time that has been granted us and we conclude our brief at this time.
The Joint Chairman (Senator Hays): Thank you very much. Do you have a short question, Mr. Hawkes.
Mr. Hawkes: I did, if you do not mind staying another minute. I think the general tone of your brief is consistent with a lot of my own thinking that in fact what we have here is the potential for separation from past legal traditions, past governing traditions, past ways of evolving our collective social contracts; and in context I have a particular concern. If the members opposite are determined to force this kind of separation on all Canadians then when the other shoe drops I think it drops in the area of the court, and we have in Canada a system in which our courts are chosen without much in the way of public examination, and yet what this piece of legislation would do would be to hand those courts considerably more responsibility, considerably tougher decisions, if you like, more control over our lives, and it bothers me, the potential over time, for continuation of a system of judicial appointment which does not provide adequate examination into the back-
ground of those people, their personal belief systems, and so on, that is bothersome to me. I see a lot of nods and I gather from that that you agree. If we are going to have something of this kind that has the potential for interpretation, that has the loose wording, then do we need a change in our system at the same time to provide for greater public examination of the judges.
Mr. Smith: Mr. Chairman, I think the honourable member has pointed to the very premise that we have attempted to present here today and that is the vesting in the courts of the decision making which would follow the wording of this document, taking it away from the legislatures which are accountable to the people; and the point made wherein the selection of judges might be made with greater care is something that I think is beyond our purview and our ability to comment on. I simply express appreciation for the support from the honourable member to our position.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes. Mr. Smith, we want to thank you for being here this morning and we are mindful of your brief and we will be considering the document, I am sure, when the Committee are in the clause by clause phase of our activities. I want to thank very much also Mr. Warner and Mr. Walker for being here this morning. We appreciate it very much. Thank you.
If Mrs. Hartling of the National Anti-Poverty Organization would now come forward and Mr. Schultz, the Associate General Counsel from the Public Interest Advocacy Centre.
Mrs. Hartling, I understand that you are going to be first with your opening remarks.
Mrs. J. Hartling (Executive Director, National Anti-Poverty Organization): Yes, that is correct.
The Joint Chairman (Senator Hays): You may proceed. Mrs. Hartling: Thank you. First of all I would like to thank the Committee very much for allowing us to appear. We feel it is a very urgent concern to the group of people whom we represent, Canada’s poor, who participate very little in Canada’s society, and we feel it is very urgent that they have the opportunity to express their views on such an important topic.
I would like to say at the outset that we strongly support the establishment of an entrenchment of rights, but rights which will be upheld by the courts and the legislation.
Currently civil rights do not take precedence in law, and as a result are often rendered meaningless when tested in the Supreme Court of Canada.
We, therefore, examine the constitutional proposal and requested the assistance of the Public Interest Advocacy Centre, asking that they prepare a legal opinion for our organization on the proposed entrenchment. Their examination of the constitutional proposal, led to the Board of Directors for the Public Interest Advocacy supporting the National Anti-Poverty Organization in the recommendation that the
government take all steps to ensure that these rights can be legally enforcable.
As a result, one part of our brief is a joint brief supported by both NAPO and the PIAC.
Mr. Schultz will briefly explain our joint overall concern that, unless amendments are made to certain other pieces of legislation the entrenchment of rights will not achieve the desired results.
Following Mr. Schultz’s remarks, I will outline some of our specific concerns with regard to the rights proposed.
The Joint Chairman (Senator Hays): It would appear you have some comment to make, Mr. McGrath?
Mr. McGrath: Mr. Chairman, may I just interpose this point in order to assist the witnesses. Given the number of witnesses we have today-this is an interesting brief as well as an interesting witness-and I wonder whether the witness would, where possible, paraphrase his brief in order to allow time for the Committee members to ask questions. That is an option which is open to you, but I would suggest to you that it might be in your interest if you did allow some time for questioning.
The Joint Chairman (Senator Hays): Mr. Corbin.
Mr. Corbin: I would like to support what Mr. McGrath has said, and I think to alleviate fears of the witneses that they may not be fully heard, I would also recommend that we append the full text of the presentation they give us this morning to the minutes of the meeting.
The Joint Chairman (Senator Hays): Agreed.
Mr. Nick Schultz (Associate General Counsel, Public Interest Advocacy Centre): Thank you, Mr. Chairman. My presentation is about five minutes long and I believe Mrs. Hartling’s follow up remarks will also be a few minutes; so I believe there will be ample time for questioning.
On behalf of the Board of Directors of the Publice Interest Advocacy Centre, I would like to thank you for this opportunity to appear before this special Joint Committee to present this brief jointly with the National Anti-Poverty Organization.
As you can see, I am representing the Advocacy Centre alone, not because of lack of interest on the part of our Board, but rather because of the extremely short notice we were given for this appearance.
We appreciate the fact that you are under a great pressure of time, and we will therefore highlight the joint submission.
The Public Interest Advocacy Centre and the National Anti-Poverty Organization, support the entrenchment of a Charter .of Rights; but we do not believe that a republican legal concept such as a Charter of Rights can be injected into our existing Parliamentary tradition simply as proposed.
Our basic concepts must be adjusted if we are to have a living Charter of Rights.
We already have a Bill of Rights which is suitable for little else but framing, a Bill of Rights which was struck dead in the face of our constitutional tradition. If the same fate is not to befall this Charter of Rights, then certain specific steps must be taken.
Section I, which preserves the existing constitutional tradition, must be deleted to fully entrench the Charter. Its meaningless vagueness opens the door to the very abuse to the supremacy of Parliament which the Charter is intended to check.
Moreover, special provisions are necessary to instruct judges in the Charter’s interpretation.
By deleting Section I of the Charter, there will be removed an obvious peg for argument designed to thwart the Charter’s purposes.
But the Charter must still contend with a legal traditon steeped in the notion of Parliamentary supremacy.
There must be clear statement, firstly, that the Charter confers substantive, not merely procedural rights.
Secondly, there must be a clear stattement that the Charter is to be interpreted as an entrenched constitutional Charter and not as an ordinary statute.
Thirdly, there must be a statement that the Charter has primacy over all other statutes.
Fourthly, there must be a statement that doubts as to the interpretation of any provision of Charter should be resolved in favour of the individual and not of Parliament.
Fifthly, there must be a statement that courts be authorized to examine the background to the constitutional acts in interpreting them; namely, that courts be authorized to examine the debates of Parliament, the reports to Parliament, and so on, so that our courts will understand fully the context in which the acts were drafted.
Finally, in this regard, individuals must be assured an inexpensive, quick and authoritative remedy when their rights are infringed.
In this regard, we have made specific proposals at pages 21 and 22 of the joint submission.
I would not like to move on to another matter, the right to benefit from and share in the economic development and social progress of Canada.
In the sphere of economic rights, the proposed Charter of Rights enshrines a meanness which is not worthy of Parliament, Parliament which has, on so many occasions, acted with charity and compassion.
The right to be free from want was recognized 40 years ago by President Roosevelt when he enunciated the four fundamental freedoms: freedom of speech and expression, freedom of worship, freedom from want and freedom from fear.
These freedoms were given content and meaning in the United Nations Universal Declaration of Human Rights. The idea was affirmed by our Prime Minister in a speech at the Mansion House in London on March 13, 1975. Yet, nowhere in this proposed Charter is there a statement that Canadians have a right to be free from want.
There are provisions respecting freedom of speech and of expression, freedom of worship and freedom from fear, but nothing respecting freedom from want.
Nowhere is there anything resembling Articles 23, 24, 25 and 26 of the United Nations Univeral Declaration of Human Rights which provides for the right to work, the right to protection from unemployment, the right to equal pay for equal work, the right to just and favourable remuneration, supplemented if necessary, by others means of social protection; the right to unionize; the right to rest and leisure and the right to paid holidays, and the right to an adequate standard of living, including necessary social services and social security. Finally, the right to education and choice of education.
We would commend these provisions to the Committee; alternatively, we would recommend the Prime Minister’s 1975 list.
Progressive legislation has gone far to share with Canadians many benefits of social and economic development and social progress; but in the absence of entrenchment, what the legislature gives the legislature can take away.
The universal declaration of human rights, passed by the United Nations general assembly on December 10, 1948, held out a great hope to the peoples of the world. Now is the time to rekindle the hope of that great year of peace, 1948.
We would also like to make some other specific comments briefly. NAPO supports the request of the Canadian Human Rights Commissioner that Section 15 of the Charter, dealing with discrimination, be expanded to include physical and mental handicap, marital status, situation de famille, and sexual orientation. NAPO would add as well discrimination on the basis of poverty.
The proposed Charter contains a more subtle form of discrimination. While the rights enumerated would be of value to Canadians with means, many are valueness to those without means. What use is the right to hire a lawyer if you do not have the money to pay him.
So, there must be a clear statement in the Charter that those who lack the means will be provided the means to exercise and enjoy the rights enumerated in the Charter.
With respect to mobility rights, the limitation proposed by Subsection (6) and Subsection (3) seriously discriminates against the poor. Because of the lack of time, I do not propose to elaborate on those, but they are set out on page 17. But NAPO would ask that Subsection 3 be deleted in its entirety.
With your permission, Mr. Chairman, I shall relinguish the floor to Mrs. Hartling; but before doing so, I would like to thank the Committee on behalf of the Public Interest Advocacy Centre for the opportunity to present this submission, and hope that our comments will assist the Committee in this great and noble task.
The Joint Chairman (Senator Hays): Thank you very much.
Mrs. Hartling: Thank you.
I only wanted to make a few brief comments to reiterate the points which we have set out in our brief. I would like to make one addition to that brief.
We would like to express our support for the entrenchment of rights for native people in Canada, as their views were presented after the time or writing of our brief, because we were trying to meet the deadline of this Committee.
So we would like to express our support, since many of Canada’s native people are living in poverty and comprise a substantial part of our membership and it goes without saying that we support them.
Further, I would like to emphasis that it is most often the poor who, in order to establish their rights, must turn to the courts and to the government to enforce those rights.
Therefore, we believe that it is very critical that the Canadian constitution should be backed by all the strength that legislation can give it.
We believe, too that the rights as outlined are inadequate. There must be the right to live; many of Canada’s poor are quickly losing the right to live in today’s economic situation.
Finally, I cannot too strongly emphasis the importance of the right to participate. A recent study we have done of over 600 organizations of the poor which were in existance one year ago indicates that 40 per cent of them had to go out of business primarily due to funding cuts and economic restraints. Their right to participate is being taken from them, and we strongly urge that some steps be taken to have a commitment from the federal government to ensure that all people in this country can participate equally.
I will not take up any more of your time, and I would like to thank you for the opportunity to participate.
The Joint Chairman (Senator Hays): Thank you very much, Mrs. Hartling.
Mr. de Jong followed by Mr. McGrath.
Mr. de Jong: Thank you, Mr. Chairman.
I would like, first of all, to thank these two organizations for presenting what is an excellent brief, especially in view of the short time I know you had for its preparation.
I am also concerned that the poor and “the victims of the system” are the people who often are not mentioned in things like constitutions; yet things like constitutions are surely there to protect minority groups, particularly I think of the poor and disadvantaged.
One of my strong reservations about the proposed document is that it is not a forward looking document.
We all know that in the years ahead we are going to be seeing major economic, social and technological changes with very major social and economic dislocations. We think it is important, as you have pointed out in your brief, that the constitution should provide some basic economic, social, health and education rights.
Our party will be, in the weeks ahead, urging certain amendments, so that these rights can be included in our final document.
Given the time limitation, first of all, I would like briefly to ask you what you feel is the role of the provincial government as against the federal government in providing social services to Canadians?
Mrs. Hartling: We have only examined the existing system. That is the reason why we have expressed concern on the section dealing with mobility rights.
Currently the arrangement is funded by federal tax dollars and essentially spent by provincial governments.
We believe that the right to social services should be a universal right. We are not disputing the right of the provinces to deliver social services; but there should be some form of universality across Canada, which could be expressed in terms of economic rights.
Mr. de Jong: What is your opinion on Section 31 of the resolution dealing with equalization payments?
Our party finds that it is a weak section. We will be proposing amendments to strengthen it.
In our view, in terms of funding the federal government has an important role to play. In terms of the delivery of services, we feel local and provincial input which should often be more
sensitive to the needs of the community and the people might be a better vehicle in terms of the delivery of service.
Mrs. Hartling: Yes, I believe there is the need for a universal standard of social services and that the actual delivery should be left to the provinces.
However, I must admit that we have not very closely examined Section 31 on equalization payments.
I have found, however, that the existing system really does not equalize the situation province by province.
Mr. de Jong: Yes, that is true.
I can remember in my experience working with poor peoples groups in Vancouver that very often we were funded by grants from the federal government, yet had to deal more often with the local and provincial people in terms of trying to fit what we were doing with municipal and provincial programs.
That brings me as well to the question of your criticism of the question of mobility.
Again, there is a conflict between provincial programs designed to help specific people in its population, and therefore setting up restrictive measures as opposed to federal concern with regard to this question of mobility.
Do you find provincial programs specially designed for the disadvantaged people within the province harmful over-all?
Mrs. Hartling: No, I do not believe they are harmful. Looking at them in terms of rights, they are a necessity.
Mr. de Jong: As to the concern expressed in your brief about the Charter of Rights, do you think if a Charter is entrenched in the constitution that we would have to change our system of nominating judges, for example that judges should be elected?
Mr. Schultz: It will be something which will have to be considered. The thrust of the comments made in the brief is simply that without criticizing our judiciary, if we are to move in a new direction we will have to take steps to ensure that our judiciary properly understands the manner in which the document is to be treated, and one way of doing that is to perhaps reconsider the method by which judges are appointed and to consider, perhaps, their ability, not simply to function as judges in our existing system, but also their ability to sit in judgment over the constitution in dealing with constitutional matters.
Mr. de Jong: What do you think the implications might be in terms of the judicial system if certain economic and social rights were written into the Charter of Rights?
Mr. Schultz: I think it will be a question of how they are written in.
As I see the language of the United Nations Charter of Rights, the Universal Charter, what it is saying is that here
there are groups of people who have to be considered and considered under certain specific headings. It does not say that you do not have to do any specific thing.
I think there will be room for interpretation as to whether or not a province, in a provincial area of jurisdiction, has simply failed to consider some aspect of the welfare of its citizens, and that would give rise to a challenge that a piece of legislation trampled on that right and therefore was invalid.
It is not the kind of thing which would take away a lot of the discretion which is in the legislature now, but would simply enshrine the fact that these are matters which the government have to consider when they are proposing legislation, and that their legislation has to be directed towards these goals, and if they are not directed towards these goals then they are not carrying out their proper constitutional function.
The Joint Chairman (Senator Hays): Thank you very much, Mr. de Jong.
Mr. McGrath, followed by Mr. Allmand.
Mr. McGrath: Thank you very much, Mr. Chairman. May I say at the outset that I was very impressed by this brief. It is the first brief I have read which has put together arguments which address some of the concerns I have with respect to the difficulty we face in trying to mesh a republican type of Bill of Rights into a parliamentary system. I think you have done the Committee a great service. I have been reading your brief, and, unfortunately, we do not have enough time to go into it. You have addressed some very serious concerns. I am glad that the full brief will be a part of our transcript today.
Perhaps I could take up where Mr. de Jong left off, because at the end of his questioning he was touching on what I want to get into; you perhaps summarized it best in paragraph 11 where you say-and I quote:
Can a civilian-republican legal concept such as an entrenched Charter of Rights now be injected successfully into the common law constitutional tradition of Canada?
That, to me, is the most important question facing this Committee.
You are the first witness I can recall who has addressed it so succintly and precisely. It speaks to the whole question of how can the poor and disadvantaged people of the country, for whom you speak, be best protected.
I happen to believe that the parliamentary system provides perhaps the best degree of protection for the disadvantaged people of the country, and if we are to have a Charter of Rights then how can we make the two complimentary without, if I may use a cliche, throwing out the baby with the bath
water? If it is possible to have the best of both, then that is obviously what we as a Committe should be heading for.
You touched on it as well in your oral presentation and I think it speaks to the problems of legal rights, for example; what is the point of having entrenched legal rights such as, for example, set out in the legal rights section where everyone has the right not to be subject to search and seizure and the right not to be detained or imprisoned except on grounds and in accordance with procedures established by law. Well, that is meaningless if you do not have counsel, if you do not have somebody to advise you of your rights, and your organization of course attempts to do that although I suppose legal aid in a way does attempt to address the problem as well, but it does seem to me that the danger in entrenching legal rights is that you are affording a great deal of protection for the advantaged people who can afford counsel, whereas not addressing the problem of the disadvantaged who cannot afford counsel.
As somebody once said, beggars hang so that jurymen may dine. They only hang poor people. That is my problem with capital punishment, and I would just like for you to expand on that if you can?
Mr. Schultz: You have touched on a number of matters, I am not sure exactly where to start but I will start where you left off which is …
Mr. McGrath: Well, I merely want to try and highlight what I believe are some of the most important points that you made and give you a chance to expand on them because of the limited time of your presentation?
Mr. Schultz: Thank you.
On the question of legal aid, as you have indicated, we do have in I think virtually every province fairly comprehensive legal aid plans which remove the pernicious aspect of the penal system where people who could not afford lawyers were simply going to jail because the only people they had advising them were the police officers who were arresting them.
However, there is no provision in this Charter which would ensure that those legal aid plans, or something like them, remain in place.
What we would propose is that there be some provision inserted in the Charter to ensure that those without means be provided, not necessarily specifying the means but simply that consideration be given to providing the means so that these rights can be enjoyed. That would not necessarily tie the hands of the legislature into saying: you have to have this specific legal aid plan; but a province would have to give thought to establishing a legal aid plan which would redress that problem.
So that I think what we are suggesting is that these are rights that have to be put in there, they have to be things that the legislatures or Parliament has to consider depending on its particular head of power, and ensure that when it is passing legislation it is giving proper consideration to the matter and is doing something to remedy the current concern as it is
expressed in the constitution, so I think that is where the balance is between our parliamentary tradition, if you like, and the republican notion.
I do not think that having a fully entrenched Charter of Rights and a Charter of Rights which also requires Parliament or the legislature to consider the economic welfare of the citizens is going to wipe away our parliamentary tradition anymore than the Bill of Rights in 1689 erased Magna Carta, and in a sort of oblique way that was the point of inserting that into the submission.
The Bill of Rights of 1689 marked the transition from the Divine Right of Kings to parliamentary supremacy. The sovereign is still there, what we are suggesting is that we are now ready to move to an entrenched Charter of Rights, Parliament will still be there, Parliament will still have its authority and that authority will simply be enshrouded, if you like, by a number ‘Of individual rights that Parliament has to consider when enacting legislation.
Mr. McGrath: Given the parliamentary role, this is one of the concerns I have with the whole principle of entrenchment, and that is the danger that if we entrench a charter of basic fundamental rights and freedoms it could very well be a signal to the government to say: well, that is all looked after, we have nothing more to do because everybody is protected by the entrenched Charter. Of course, that is not the case, there will still be a need for statute law to address shortcomings in the law, to protect the disadvantaged, the poor, in the market place.
For example, you know perhaps better than anyone with regard to property rights or with regard to the civil law, very rarely will a finance company move to repossess on a person who has means, they will only repossess from a person who has no means and that does not really understand what his or her rights are with respect to a contract or a chattel mortgage.
There will still be, in my view, and I think this is probably what you are trying to say in terms of meshing the two, there will still be a great need for statute law to protect rights, to supplement what is entrenched in the constitution.
Am I paraphrasing correctly, is that your view?
Mr. Schultz: Yes, I think that is fair. You still have that scope and that need, you will have to have the legislation.
What we are saying is that there has to be a floor placed below which the legislature, if you like, cannot go, that you cannot simply erase all economic sharing, that you could not have a government which not only wished to do away with freedom of speech but could not do away with, if you like, the tradition that we have in Canada of sharing the benefits of social progress.
Mr. McGrath: And speaking of rights in the market place, the right to protection in the market place, this of course puses another part of our dilemma because we are crossing over into another jurisdiction in many respects although there is a federal role, but I suppose it would be impossible, and here I think you have perhaps fallen into the temptation of trying to address everything in your proposal, because when you attempt to address everything then you are by definition
leaving certain things out, and it is impossible, I would suggest, to protect in a Charter of Rights all of the legal rights that we enjoy by tradition of our parliamentary system, such as the right to protection in the market place.
I see no attempt made, for example, to protect people who lack judgmental maturity, such as children, or people with low education or low IQ, from being taken advantage of in the market place. We see that happening every day, and there is no way the Charter of Rights is going to address that problem.
We see it in the form of advertising, for example, we see it in the form of the bait and switch selling, the pyramid type selling that takes place door to door, that kind of marketing preys on the poor and the disadvantaged, they are the people who are the gullible ones, who are taken advantage of daily, and there is no way we can address that in the Charter of Rights.
Mr. Schultz: We were not attempting, I do not think, to cover off every conceivable piece of beneficial legislation or legislation that might be beneficial to poor people, or to anyone else for that matter, but I think what we were trying to do was to identify some fairly obvious short failings in the Charter and to suggest phrasing that has been adopted ·by Canada at the United Nations which deals with this area in the sense that it creates a foundation upon which one can build.
What we want to see is that that foundation is put into a Charter of Rights so that what is there will continue to grow but with a constitutional foundation, that we will not have to simply rely on successive governments in successive elections promising to do these things.
Simply the point is that if the underpinnings are removed, if for some reason governments should take the position that these are not things that they choose to pursue, then they do not have to pursue them.
Magna Carta was enacted by successive kings over centuries because the rights under Magna Carta were simply the will of the king, and Parliament in 1689 said: enough. What is in the Bill of Rights of 1689 really does not deal with all of our parliamentary tradition but it is an important document in identifying the change from the Divine Right of Kings to parliamentary supremacy.
What we would like to see is a charter that firmly marks a change from our traditional concept of parliamentary government to a modified form of parliamentary government, one with an entrenched Charter of Rights, and what we are suggesting is the document that is before the Committee right now does not do that.
Mr. McGrath: Well, I think you and I want to again compliment you on your brief.
The Joint Chairman (Senator Hays): Thank you very much, Mr. McGrath.
Mr. Allmand: Mr. Chairman, when I had read. this brief I had not seen any recommendation to entrench the collective rights of our aboriginal peoples, the Indians, the Inuit and the Metis, which are probably subject to the greatest poverty in
Canada and I was going to ask Mrs. Hartling about that but she has answered that already and said despite the fact it is not in the brief her group recommends the entrenchment of those collective rights so I will not pursue that any further.
I wanted to ask the witnesses with respect to the recommendations relating to the interpretation or the possible interpretation of the Charter of Rights, they feel that some specific guidelines should be given to the judges so that the Charter of Rights is not interpreted according to the ordinary rules of interpretation.
I wanted to ask them whether they had considered Section 25, which says that any law that is inconsistent with the provisions of this Charter is, to the extent of such inconsistency, inoperative and of no force or effect.
In making the recommendations had they considered Section 25 and do they not think that Section 25 is a special specific d~rection to the courts in interpreting this Charter?
Mr. Schultz: We of course were aware of Section 25. What we are saying is we do not think Section 25 goes far enough in dealing with the matter and that I think it should be made more explicit, and we think that goes hand in hand with the recommendations we made with respect to Section 1 of the Charter.
The concern that we have is that essentially this Charter of Rights will have no more success in overcoming our, if you like, our entrenched legal tradition than did the previous or the existing Bill of Rights, the 1963 Bill of Rights.
Mr. Allmand: The Diefenbaker Bill of Rights?
Mr. Schultz: The Diefenbaker Bill of Rights. And that really this is something that cannot be approached in quite as perhaps a straight forward or simple way as may have been thought by those who drafted the Charter, that it requires perhaps a bigger club, if you like, to get it past what amounts now to three or four centuries of parliamentary tradition and legal tradition related to it.
Mr. Allmand: Well, I share your sentiments but I have been trying to find a formula of words which you can put in the constitution which would give that kind of direction. I have been searching other constitutions, and so on, to find a formula of words and I have not been able to find a satisfactory one to date.
Do you have any suggestion how you can put in the Charter of Rights a formula of words that would convey what you express in your brief? Have you tried to formulate something that you can in fact put in the constitution to do exactly what you say? I have found some difficulty.
Mr. Schultz: I confess that we have not given it a great deal of thought simply because of the time and because it is something I think requires some consideration. What we are suggesting is that it is something that needs further consideration.
If I was going to say something off the top of my head I would just simply say it is to be considered an entrenched document, an entrenched constitutional document. That is a term which has already been given some judicial interpretation
in Canada in the sense that we have been told what we have is not entrenched and perhaps just simply using those words will have some impact and I do not believe that those words are found in any specific section of the Charter, although I know they have been used in the debates and so on.
Mr. Allmand: Well, this Charter would in fact be entrenched because it could only be changed by the process of constitutional amendment, whereas the Diefenbaker Bill of Rights and the Charter of Rights, and the Charter of Rights that are found in many of the provinces, are just ordinary pieces of legislation, so in fact this Charter would be entrenched. Well, I think we have probably pursued that far enough.
With respect to Section 10 (b), I likewise share the sentiments of your proposal that the right to retain and instruct counsel without delay is really not of much value for those who have not the money to pay for counsel.
What would you think if you reworded that section to read, if it stated: everyone has the right on arrest or detention to be represented by counsel without delay. Would you believe that such words then would oblige the states or the provinces and the federal government to in fact make sure there is counsel available rather than leaving it up to the individual?
Mr. Schultz: That would certainly achieve that end. It does not resolve the general concern which is that there are other provisions of the Charter where rights are conferred which are really rights conferred on those that have the means to exercise them and we would hope that something of a more general nature could be inserted.
That suggestion is really tied in with the total suggestion that there is something lacking here in terms of general provisions relating to the sharing of economic progress and social development.
Mr. Allmand: With respect to your proposals for economic rights, and I would like to second what Mr. McGrath said, I think in this brief you have provided us with recommendations and comment on many subjects that I have not seen before in other briefs and therefore it is a very useful brief and your background in the brief is very useful, and maybe you have done more work on this than any of us have but when you suggest at page 15 to include in our Charter of Rights the economic rights which are found in Articles 23, 24, 25 and 26 of the Universal Declaration of Human Rights, my study so far indicates that where those rights have been included in some national constitutions. They have been included in those constitutions where they have not really been enforcable, in some cases in countries with a lot of poverty and so on.
I wonder whether, maybe you have done more work on this and you can give us some examples of where those articles have been included in a national constitution where they have been effective in actually helping people to achieve those goals, the right to work, the right to protection from unemployment, the right to equal pay for equal work, because they are no doubt goals we have signed when we signed the Universal Declaration of Human Rights, but I have not been able in my work to see examples where they have been enforcable in a
democratic society because they were in a constitution, but mayne you could give us some examples?
Mr. Schultz: Well, I am not a constitutional scholar so that I have not looked at other constitutions with a view to seeing how these articles have been adopted, but I think that perhaps your concern is not a well-founded one, if I may say, for Canada, for the simple reason that where one is bringing in a constitution that confers, if you like, economic rights into a country which is desparately poor in general, there is going to be a great deal of difficulty in alleviating poverty, particularly where that country has no tradition of sharing economic rights.
I think the situation in Canada is a different one, we do have that tradition, we have a long tradition and I think Canada is one of the leaders in the world in terms of sharing the benefits of economic development and social progress, and really I think it is sad that these rights are not recognized in the constitution, so that we are really talking about a different kind of situation.
I think in Canada they would be effective simply because we have that tradition, because there is something there to build on, because there is a consensus in the country that these are rights that people should have.
Where you can introduce any paper you like in a country that has no effective legal tradition, has no effective democratic tradition, and it is just that, a piece of paper. The bill of Rights in 1689 was an effective document not because of what it said but because of the consensus that it represented and because it became a starting point, it was a document upon which the parliamentary tradition grew and I think that here we have reached the point in our society where we have achieved some consensus on these things and I think that they should be in a constitution so that governments can develop and can grow with them, and develop them.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Allmand.
Mr. Kilgour followed by Senator Lucier.
Mr. Kilgour: I, too, thank you very much for an excellent brief. Time is so short that I will try to get right to the question. One of your propsals is to amend the Supreme Court of Canada Act so that any citizen can apply for a ruling on various matters. I think that is an intriguing idea. Is that modelled after the West Germany constitution? Is that what you had in mind there?
Mr. Schultz: I am afraid that I did not put that in. This was a sort of combined effort by a number of people in our organization so I am not sure what the person who put that in had in mind or what the origin of it was.
Mr. Kilgour: With respect to blending the parliamentary supremacy in the Charter of Rights do you have any model that you particularly like, again, such as the West German basic law or the American Bill of Rights.
Mr. Schultz: I think when you are talking about West Germany you are again talking about a different tradition in
that they after all were a monarchy until just before the end of World War I and we had something of a republic and then again a dictatorial government followed by a republic. So really the model there does not fit, in that sense.
Mr. Kilgour: Is there some model that you do like, that you have seen, that you think we should perhaps look at?
Mr. Schultz: I think what is happening in Canada if indeed this document becomes properly entrenched is revolutionary. I do not think it has happened really elsewhere in that senxse. As I say, I am not a constitutional scholar so I cannot speak for every country in the world but I think in my understanding of our parliamentary tradition what may happen here will be revolutionary, I think it is unique. That does not help you, I know.
Mr. Kilgour: The principle of judicial restraint is one of the reasons I think a lot of people feel that the Bill of Rights which we have has not worked, has not had any teeth really, but for one case, the Dryones case. Do you think that changes in the interpretation act are going to go far enough or by entrenching a constitutional Bill of Rights, an effective bill of rights, would that not solve the problem that you underlined with respect to the Diefenbaker Bill of Rights.
Mr. Schultz: I think it would go a long way to resolving that. It is going to take time I think, for the courts to learn to deal with a constitution that confers in fact individual rights that may overturn legislation, so I think judicial restraint as a judicial attitude will remain but I think what has to be done is to remove the substantive provisions in the charter or elsewhere that give that credence.
We indicated that the American experience was that the first U.S. statute was not overturned for some 60 or 70 years after their Bill of Rights, or the constitution, was brought in, so there you have partly indication of judicial restraint and I think partly also the consensus that surrounded the understanding of what the document meant.
Mr. Kilgour: On a different subject, a lot of people think and perhaps you do too feel that inflation is the worst enemy of poor people and under-privileged Canadians. I think that is the reason why a number of American States have proposed a constitutional amendment in that country that would bar their federal government from running a deficit on the premise that deficits mean more and more inflation. Do you have any thoughts, or maybe you would not wish to express any, on that feature.
Mr. Schultz: It is not something I have given thought to although obviously I have given some thought in a general way to what kind of restrictions would be imposed on government. I think in considering whether or not, for example, bringing in a deficit, if someone objected saying a government operating in a deficit situation was a harmful thing, and took that to court, the court would then have to look at the arguments; and if what you were dealing with, probably, was simply a matter of economic judgement, that the government was acting in good faith to alleviate the economic condition of the country, to
benefit its citizens, then the court may well not overturn it. If I can make an analogy with the famous margarine reference where we had margarine prohibited because it was supposed to be bad for us, and that was an exercise of the criminal law power, the Supreme Court of Canada said well, really, when you look at margarine and consider the evidence there is nothing about margarine that is harmful, so the government cannot properly have been said to have been exercising that power. I think some of the same kinds of considerations would come in where you are dealing with something like economic rights.
Mr. Kilgour: One more question, Mr. Chairman?
The Joint Chairman (Senator Hays): Yes.
Mr. Kilgour: Mrs. Hartling, you have expressed the view that we should entrench protection of native rights. Would it be fair to say that you would favour the type of changes proposed I believe by the National Indian Brotherhood in Section 23 of the Act or do you have a particular perspective on that section?
Mrs. Hartling: No, we are supporting their position. As I stated before we did not include their position in our brief because it was written prior to their presentation but we are supporting their position.
Mr. Kilgour: Thank you very much.
The Joint Chairman (Senator Hays): Thank you, Mr. Kilgour.
Senator Lucier: Thank you, Mr. Chairman. I have just one question I would like to ask.
Mr. Schultz, you make a very strong statement in favour of consensus on the entrenchment of the charter of rights. You say that the need for a charter is clear, so you are in favour of entrenchment only on consensus, but you state there is a real need for a charter.
You then go on to state that Indian rights must be included in the Charter, that you are in favour of their rights being protected.
Indian groups have all appeared before us and have made it very clear that if they have one position it is that there will never be entrenchment of their rights if it depends on agreement of the provinces, if consensus is required.
The objective of any legislature is consensus. What would your suggestion be if we cannot achieve consensus? Do you still think that we should go ahead with the entrenchment of the Charter?
Mr. Schultz: I think you have put the question of consensus at the governmental level, namely consensus amongst the various provincial governments and the federal government. In the brief the term consensus I do not think was used in that way. It was used in the sense of what it generally recognized across the country as being a desirable right to entrench in a charter. If that consensus is reflected through provincial gov-
ernments meeting with the federal government or is reflected in other ways, that achieves the purpose.
I think that dealing with native rights you can deal with consensus at a more specific and a more general level.
I think if people give thought to what a charter of rights ought to embody they will see that it ought to embody minority rights, and if you accept that as a general proposition I think it leads you fairly quickly to the conclusion that native rights should be entrenched in some way in the Charter and really that is I think the point that we are making.
Senator Lucier: So what you are saying is that if we listen to groups at this Committee and if the groups who appear here seem to have a consensus, that we should entrench not native rights necessarily but anything that the groups who appear before us seem to be in favour of, you would accept that as consensus, not what the provincial premiers think.
Mr. Schultz: No, no. I do not think I was quite saying that. The onus is not I think on the groups appearing before you to demonstrate a consensus I think that the Committee will distill its consensus or get some sense of the consensus by hearing groups. I think what we are saying is that time needs to be taken to go through this process and to get some sense of what the consensus is.
Senator Lucier: Mr. Schultz, somewhere we have to arrive at a consensus that has to be achieved from someone. Either we have to get it from the people who appear here, it has to be achieved at the federal-provincial conferences or it has to be achieved from someplace. Now, you are making a strong statement in favour of consensus and what I am trying to find out is where do we get it. I do not want to be difficult but I want to know where do we get the consensus from? Who do we listen to? We are isolated, we are in a room, we really do not know. Where do we get the consensus?
Mr. Schultz: I had not been meaning to try and duck your question, I thought I was answering it, so I will have another run at it and see if this answer helps you.
We have put this forward in the context of this Committee as it has been framed. We have not addressed any question with respect to whether or not this Committee ought to be here or whether or not there ought to be a federal-provincial conference or any of those questions which we know are on some people’s minds. We have simply accepted the mandate of this Committee as a Committee which has been established by a joint resolution to consider the matter and to report to Parliament on it and I think that this Committee has a role in distilling that consensus and really that is what we were addressing. I think it is here that the consensus will be distilled and what we are saying is that I think time needs to be taken to distill it.
Senator Lucier: Thank you very much.
The Joint Chairman (Senator Hays): Do you have a short question?
We have three more groups to hear.
Mr. Hawkes: I recognize that, Mr. Chairman, but I also recognize what my honourable colleague said, supported by Mr. Allmand, and I think by the NOP that this brief is a
considerable departure from some other briefs and therefore requires a little leniency on our part in terms of time.
Senator Lucier and I have both been here for a great many sessions and listened to native groups, and I got a somewhat different message. The message I got from the aboriginal peoples of Canada is that they feel because they are aboriginal peoples that their agreement should be a requirement for constitutional change today and in the future and there was I think a clear message to this Committee that their position is that their agreement is necessary for consensus and maybe that takes us a little ways towards the definition of consensus; but they feel they have a special place in this country and that their agreement is required for change today and in the future, and as they read the constitution act 1980, I think they have also left us with a message that their rights are better protected without this act than they would be with the act in its current form. That is an interjection that is a response.
The thrust of my question was somewhat like Senator Lucier’s but the last sentence of your brief, you are hoping that this brief will assist this Committee in this great and noble task, and I think constitution writing is a great and noble task because it addresses itself to the social contract between the people of the country and those to whom they give the responsibility for governing and it is that sense of social contract; and I am bothered that we are engaged in a great and noble task with what I view to be at best a very second rate process. We find ourselves today with less than one hour to deal with all of the thoughts that are in your brief. We faced closure in the House of Commons after 24 hours of debate. We have a situation in which six provincial governments are taking the federal government to court to stop this process. We have the aboriginal peoples of this country taking this federal government to court to stop this process. We have had a succession of witnesses who have indicated to us their deep concerns about the potential intrusion in their lives if this Act is indeed to go forward and become paramount law in this country.
I want to read back to you the entire statement on consensus which Senator Lucier opened up—it is on page 10-and ask you what you think the consequences are if we do not operate according to the general flavour of this paragraph. The paragraph reads as follows:
To be meaningful the Canadian Charter of Rights will also be revolutionary. To be successful it must be founded on consensus. The need for a charter is clear; the content of the charter is a significant source of argument. Time is needed for the consensus to develop more fully. The value of consensus is inestimable.
I presume you feel deeply about the statement and whatever you can tell us about what you think the consequences might be, if we do not pay attention to that thought …
Mr. Schultz: The brief suggests what some of the ramifications of that are. The value of consensus is we will have a document which may not be taken to court over and over again
at least in its early years, in the same way that the American Bill of Rights was not dragged into court for some 60 or 70 years after its passage by Congress, or the signing of the Declaration.
I think that is one of the benefits which may be lost, if there is a significant degree of discontent about the kinds of rights that are conferred, then it will promote litigation; so that will be a price that will be paid.
The other price will be for the courts to tend to whittle it down. If the courts are faced with or perceive a sense that the document does not embody a general consensus or there is a significant grounds well in various areas against some of the rights imposed then I think there would be an incentive by judges to whittle the thing down, particularly if the cases are brought up in the locality where there may be that feeling of discontent.
So I think that is the price that will be paid. It will be a document which will gradually be whittled away, carped at and sniped at frequently.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Schultz. On behalf of Mr. Joyal, the Joint Chairman and members of the Committee, I should like very much to thank you, Mrs. Hartling, and also you, Mr. Schultz, for being here this morning. I think that the questions would indicate the great interest that the Committee have for your brief and I remember a long time ago speaking to the Chairman of the Indian Congress and he at that time said that India was jealous of the way Canada looks after its unfortunate people. I hope that we never lose that envy because Canada is a rich country and we should look after and share with all those who are not as fortunate as some of us. Thank you very much.
Mr. Schultz: Thank you.
The Joint Chairman (Senator Hays): Our next group are the Alliance for Life represented by Mrs. Karen Murawsky, and if they will come forward-Mrs. Murawsky, you will introduce your colleagues, please, and then I suppose you are presenting the oral part of the brief. Mrs. Murawsky.
Mrs. Karen Murawsky (Past President, Alliance for Life): Good morning, my name is Karen Murawsky and I am the past President of the Alliance for Life.
The Alliance for Life is pleased to appear before this Committee. We feel a very rich sense of being amidst history, and we approach this presentation deeply conscious of the witness of those Canadians of a century past, whom we call our fathers of this Confederation.
I would like now to introduce our witnesses. On my right is Major John J. H. Connors, Health Services Consultant, Ottawa; on my left is Dr. Paul de Bellefeuille, Associate Professor of Pediatrics, University of Ottawa, and a pediatrician at the Children’s Hospital of Eastern Ontario. Behind me we have from left to right, Mrs. Una Hopkins, a nurse, and the Quebec representative on the Board of the Alliance for Life; Mr. George Peake, the Educational Liaison Officer from Montreal Pro Life and Mrs. Grace Labbe, a teacher and an advisor to Action Life of Ottawa.
The task of the Alliance for Life is to educate the public, through our 165 member groups across Canada, as to the nature of the humanity of the unborn child and the reasons for which society ought to protect that child. The marvels of medicine have made the first task remarquably simple of late and, at the same time, the perils of philosophy have caused our concern to be terribly real.
To answer the question, is the unborn child human, I ask you, were you ever an unborn child and your answer surely must be yes. You were once a single cell that your mother and father helped create, and that cell was you, a human being. To answer the question does that human being deserve human rights, should be no more difficult. Ought the state to sanction your life until you can defend yourself? While your place of residence is the market place, the state protects you, as it does in your neighbour’s house, as it does in your parent’s home, as it does in your cradle, as it should do while your place of residence is your mother.
Although this seems clear enough, there is a clamour for the womb to be the place at which your life may be called into question, and since you are not, therefore, visible to the eye, you ought not to be protected by the state. However, you are no less you unborn; you are no more you born. In whatever condition you find yourself, you must be protected, and overtures to rid the state of any obligation to protect you must be protested. While you remain unborn, there is but one thing the state can do for you, and it must!
Dr. Paul de Bellefeuille M.D. (Associate Professor of Pediatrics, University of ottawa):
We have heard a great deal about the “backroom butchers” who perform illegal abortions. Like everyone else in this room…
I would like to answer in French, if I may.
The Joint Chairman (Mr. Joyal): Of course, Dr. de Beldans lefeuille, in either of the official languages of Canada. Please feel free.
Dr. de Bellefeuille: The balance of the brief actually describes the methods of interrupting pregnancy which are currently practised legally here in Canada. The text states that if illegal abortions were referred to as butchery, they are still considered butchery when they are legal. It is exactly the same thing.
First, in the case of pregnancies which are not very advanced, the womb is curetted, a process which shreds the fetus.
At later stages of a pregnancy, a saline hypertonic solution is sometimes injected into the womb which leads to the intoxi cation of the child, of the fetus. There is an oedema and, usually, swelling which prevents the fetus from surviving. However, sometimes children manage to live and some have even survived intact.
Beyond the 20th week of gestation, a hysterectomy is usually used, an operation which resembles a cesarian section.
This involves the incision of the uterine wall to empty the uterus of its contents. In this type of operation, more often that with the others, the child is born alive and it is then to be wondered whether the child will be treated as well as any other child who is born alive. But that, I am referring to the reanimation and insullation techniques, the support of vital fucntions. However, under the pretext that the child is not really wanted and that people wanted to do away with him or her, will that child be deprived of the care which, in our opinion, falls within the duties of professional people? That part of our brief ends in a question mark. The question is phrased as follows: Can we call ourselves progressive if we condone that type of behaviour?
Major John J. H. Connors, LL.B. (Health Services Consultant, Alliance for Life): Consider, if you will the stages of life as links in a chain. Canada’s pensioners, our infirmed and incapacitated, our labor force, our students, our children and, even younger, our babies, are linked together, because all are human whatever might otherwise be their status. So, too, are unborn children a link in the same chain, similarly human and even more deserving of protection because of their vulnerability. Their very weakness dictates their need of the special protection of being named under Section 7 of the Canadian Charter of Human Rights and Freedoms, which we respectfully request include a provision that everyone, from conception to natural death, has the right to life.
Canada, we must protect the little ones! We must protect the weakest ones! This is the mark of true charity that must be the hallmark of the constitution of Canada.
If the document we are creating is to shine as the highest hope, the most noble aspiration of the people who inhabit these shores, it must enshrine the most basic right-the right to life, and must protect the most vulnerable of lives, those of its children not yet born. After all, the preamble to the Canadian Bill of Rights-an act for the recognition and protection of human rights and fundamental freedoms-reminds us of the dignity and worth of a human person under the supremacy of God.
Ladies and gentlemen, this brief is respectfully submitted.
The Joint Chairman (Mr. Joyal):
Thank you very much, Major Connors. I understand that you would be agreeable to receiving questions from honourable members of this Committee.
And I would like to invite, first, Mr. Bockstael, followed by Mrs. Mitchell.
Mr. Bockstael: Thank you, Mr. Chairman. Members of the delegation, I would like to welcome you on behalf of members and colleagues on this Committee.
First of all, I would like to say you have a very clear and direct brief which goes right to the point. We very much appreciate that.
Your last sentence sums it all up. It says that we all should be reminded of the dignity and worth of the human person under the supremacy of God. In other words, this Charter of Rights, this constitution, should be designed to protect humanity. I entirely concur with your brief that a human being created by God should have its start in conception in the womb and may go through the various stages of life to reach old age or senility, whatever the case may be, or what ever he or she may decide.
When a civilization, looking back in history, pretends to take upon itself the right to life and death, it leads to a degeneration, because it can only lead, as it has done in some countries in the past in history, to deciding whether the infirm, the handicapped and the senile should be done away with, so that at both ends of the pole we have this type of abortion to stop life that has already begun, and at the other end doing away with those whom governments or civilization deem as being unfit.
We have had many representations that a women has the right over her own body. I suppose by that nothing could prevent a woman from self mutilation if she so wanted to perform that mutilation on herself.
But what would your response be to the question: should a woman have the right to decide that the child in her womb should live or should die?
Mrs. Murawsky: I think that is probably the primary slogan we hear from the pro-abortionists today, called a women’s right to choose. This is a fast-quick slogan which has gone over very well.
But let us stop and look at it. What does the right to choose mean? To choose what? The choice here is the choice between life or death. It is the life or death of the unborn child. I think Dr. Bellefeuille can testify very accurately, if he wishes, as to the humanity of the unborn and the scientific facts proving that such a child is definitely a unique human being which resides temporarily within the mother. The right to choose simply implies the right to choose to kill.
What does a woman do when she chooses to kill the new life within her. If we put it that way, it is black and white, never, never taking away the terrible trauma the woman must go through, the agony of the pressures of society we feel are pushing women towards abortion, but nevertheless it as simple as that. She has the choice to allow the child to live or to die.
Legally, in Canada, this is available, because of the interpretation of the Criminal Code.
But what we are saying is that we want you people to recommend to Parliament that every human being is unique and that the unborn child has the protection in the womb that he has outside of the womb.
Mr. Bockstael: The other groups which have come before us always hark back to the except1ons, the small or real percentage of cases of victims of rape or other sexual assault and things like that. They say that this is justification for that kind of abortion; yet the statistics are very minimal in that area. Is that correct?
Maj Connors: Yes, that is correct. In fact, we know from research that the incidence of conception following rape is so statistically insignificant that we can discount this. We have any number of studies where it is almost impossible to get any kind of positive figures following years, in some cases ten years, in others 20 years, these cases being followed, cases of forceable rape being followed by the legal departments of state governments in the United States.
Mr. Bockstael: The other contention we have to face is that if we do not do it in proper hospital facilities it will be done in back kitchens and that there will be infections and other dangers to the women, or else those who can afford it will go to other countries to have these abortions performed.
Do you agree with any of that?
Maj Connors: No. The interesting thing, sir, about that kind of statement is that there are quite a few figuers now available to us, particularly from Sweden and other nations which have been maintaining or compiling raw data and producing statistics much longer than we have been doing, and the situation is that where there have been a method where abortion can be obtained through legal permissiveness, the incidence of illegal abortion, so called, has kept pace with those so called legal abortions in a particular nation.
It is a rather strange thing, and I think the figures here, certainly any that I have seen in any of the studies are all consistent.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Bockstael.
Mrs. Mitchell, followed by Mr. Kilgour.
Mrs. Mitchell: Thank you, Mr. Chairman. I would like to make a few comments. It will be difficult for me to put too many questions because I take the opposite view to yourselves, as does my party, the New Democratic Party, and as I believe the Liberal party, though in their case it is very difficult to find Liberals with enough guts to speak out in favour of their policy, I must say.
The Joint Chairman (Mr. Joyal): I am sorry, Mrs. Mitchell. In this Committee we have a rule and we have imposed restraints on any allusion of a partisan nature, to ensure that when we have witnesses we pay courtesy to them. I would ask you, therefore, very politely and humbly to stick to that rule.
Mrs. Mitchell: I certainly do not. wish to offend our guests in making that remark. But I think there can be no question that we have different points of view within Canada and within very large movements too on the question of the concept of life, which I do not think is too arguable, because we will always have different points of view.
I find it difficult to think or to believe that a fertilized egg or an undeveloped fetus is a person.
I know that throughout the history of the human race abortions have always occurred and this is really a natural phenomenon. This is not to say, of course, that planned abortions are. I would hope that none of us are really in favour of abortions. Certainly, the New Democratic Party are not in favour of abortions.
However, we do believe that there are times when a person makes a decision herself it is a personal decision made with the right in the particular circumstances to make the decision.
Of course, the whole question of democratic rights is the basic question here, and I appreciate and respect your point of view. I know you will not agree with what I am saying here. But I would like to go on record by saying that it is very difficult for those of us sitting around the table here to put ourselves in the position of the woman who is pregnant with an unwanted pregnancy; it always seems to be very difficult, particularly for men to identify with this situation.
Our party believes we must respect the views of others, and I respect your views.
I do not feel, however, that any of us should have the right to impose our views on any individuals, and that, in effect, is what is happening if you follow through the philosophical approach which you have mentioned.
I am also concerned, and, therefore, would like to ask members of the panel, since I know your concern about children, as certainly we are, as to what your views are and what should be done to prevent unwanted pregnancies. What is your reaction to the recommendation of the Badgley Commission’s report.
But perhaps I can leave that, and come back to one or two other questions I would like to raise.
What is the position or view of your group, or as individuals, regarding the need for birth control information, family life planning, for contraceptive to be made available and, certainly, for ways of actually preventing unwanted preganancies which might lead to abortion?
Mrs. Murawsky: There were so many points brought up, but I would like to refer to the Badgley Commission as well; and their report stated that 84 per cent of the women who requested abortions were contraceptively experienced. This would indicate something to me, namely that the problem does not lie basically with the use of contraceptives or with education in this field or sex education.
We would have liked the Badgley Committee to investigate why women were asking for abortions. We have some theories on that. A lot of it, in our view, has to do with social pressure and the law itself.
The law, in our country, is educative. Prior to 1969, when the law was amended, there were very few abortions in this country. Since that time, the number of abortions has risen very dramatically, until in 1968 there were over 65,000 abortions in this country.
Now there were not 65,000 women whose lives were endangered or whose health was very seriously impaired.
I went back to our files yesterday and picked up a brief which was presented to the special Joint Committee on the constitution of Canada in April, 197 l, which was presented by the Canadian Pro Life Organization. We have a long standing tradition and an interest in the constitution.
At that time the Canadian Pro Life Association quoted Dr. Hefferman at the Congress of American College of Surgeons in 1968.
Anyone who performs a therapeutic aborption is either ignorant of modern methods of treating the complications of pregnancy or is unwilling to take the time to use them.
This is our big concern. We know that most of the abortions done in this country today are done for social and economic reasons, and that the factors of information on contraceptives are really not leading to these abortions, that the women are contraceptively knowledgeable.
I think perhaps Dr. de Bellefeuille may want to make a comment on some of your comments.
Dr. de Bellefeuille: I agree with you on the importance of prevention, of course. Emphasis should be put on education, on social welfare, on the question of contraception, certainly, which is a matter of individual conscience on which this movement has not taken a stand as such. It would not be appropriate.
It is important to understand that every issue is much more than just a medical or legal question. Earlier, we talked about the law, we talked about democracy and about the feelings or opinions that people may have.
I would remind you that the position taken by Canada on prenatal life is reflected foremost in the Criminal Code which makes abortion a crime outside certain given circumstances. I would also remind you that Canada has subscribed to the declaration of children’s rights.
I would like to quote a short passage. On November 20, 1959, the 78 member countries at the General Assembly of the United Nations unanimously adopted the declaration of the rights of a child. You see, all 78 member countries agreed, including ours.
Although I will not read the entire declaration, I would simply like to quote one of the considerations which is as follows:
Considering that the child, due to his lack of physical and intellectual maturity, needs special protection and care, especially appropriate legal protection both before and after his birth.
Protection both before and after his birth. The unborn child has been confirmed as a living being of the human species by modern day science, provided that his genetic makeup is there, that he has all his genes, and chromosones, which will make him a unique being, which will allow him to develop in a progressive fashion.
It was stated earlier that the fetus was a non-developed being, or a developing life, but human development only stops at death. We are all developing. We are developing right now. I feel I have contributed to your development and you to mine. The whole question is one of degrees, and development is continuous in time.
Birth is only a passage. Obviously, it is a time of perturbation and deep psychological change, but the newly born human being protected by our laws is essentially the same human being as he or she was the day before birth and should also be protected by our laws.
The Joint Chairman (Mr. Joyal): Mrs. Mitchell, just a short question to conclude?
Mrs. Mitchell: Yes.
I would just like to conclude by asking, it is really from a practical point of view, I know we have differences philosophically but we know that even though laws might be changed, and I am not precisely sure what the constitutional changes are that you are asking for, but that there will still be abortions, that this will still occur, as one of my colleagues mentioned this will occur illegally, and I think we all deplore the increasing number of young teenagers, teenagers and 16 that are becoming pregnant and so on.
So, for a practical point of view, changing the law is not going to change the number of pregnancies, I would think, they are not going to be recorded statistically, the people who can afford it are going to go over the border and people who cannot are going to have to get do-it-yourself arrangements or, again, the stereotyped idea of back street abortions.
Now, I would like to ask the gentlemen who are here what do you feel is the responsibility of men to prevent unwanted pregnancies. I was at a meeting in Vancouver recently and there were close to a thousand people there, all young people in the child bearing years, and I could not help but feel that they should have a much stronger voice in this thing than perhaps some of the rest of us, but I wondered, it always seems to be the woman again that seems to be bearing the responsibility for this and I wondered if you could help us out on this side.
What do you feel is really the responsibility of men to prevent unwanted pregnancies, perhaps to use contraceptives or even to have vasectomies?
The Joint Chairman (Mr. Joyal): Major Connors.
Maj Connors: Mr. Joint Chairman.
There are just a couple of things I would like to clear up in getting into Madam’s question. I think she said a little earlier that we were talking here about a natural phenomena. I consider killing, and we, I know, take issue with this, I consider killing hardly to be natural in the sense that I understand “natural”.
Then the other point was the matter of imposing views on others. I am very confused by such a statement because I am unaware of this organization imposing its views on anyone, and perhaps you should clear up the role of this organization and that is to provide education, education to those who want it,
and in fact we simply invite people to go out and make their own decisions. God knows, it is hard enough sometimes to make our own value judgments without trying to make them for other people.
Now, with particular regard to the question posed about the male of the species and his responsibility here, one could be facetious and say: avoid women, but that would be hardly responsive to your question.
The fact of the matter is that based on the kinds of reports that reach us, the man who is the father of this unborn child really has no rights. In fact if he is consulted at all it is simply to tell him: no way, I am not interested in what you want, I am going to do what I want. And we have had a number of instances where such a father has gone to the courts in an attempt to get an injunction …
Mrs. Mitchell: Excuse me, my question was: before he became a father?
Maj Connors: Well, before he became a father?
Mrs. Mitchell: What are the responsibilities of men to prevent unwanted pregnancies?
Maj Connors: To act as responsibly as women will permit them under the circumstances. It takes two to tango, if you will pardon the expression. There are two people involved here, there are two principles, and to say it is the man’s fault that she becomes pregnant or the woman’s fault is, I think, too simplistic.
Mrs. Mitchell: We are talking about solving a problem or preventing a problem rather than …
Maj Connors: Preventing a problem, yes.
Mrs. Mitchell: Preventing, yes.
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Mitchell, for your cooperation.
I would like to invite now Mr. Kilgour reminding him that time is running out.
M. Kilgour: Merci, monsieur le president.
I would like to thank the members of the Alliance for Life for a brief that I personally consider to be excellent and I only wish it could be engraved on the desk of every member of Parliament and dans !es deux langues officielles, and in every doctor’s office in Canada.
May I ask a series of questions which I hope they do not take long to answer and please feel free, anybody, to answer if you would.
Do you feel, in fact, that we have in effect abortion on demand now in Canada under the existing legislation?
Mrs. Murawsky: Yes, I would definitely answer in the affirmative.
When the law was changed, when it was discussed in Parliament, the Justice Minister at that time was John Turner and he was asked a number of very telling questions in this regard as to what would happen, and when asked for a specific definition of the word “health”, he responded that it was not necessary, that it would be left to the good judgment of the doctors of Canada. When asked if eugenic abortions would be available under the law, he said no, it was not applicable.
When asked if Medicare would pay for these abortions, he said absolutely not, that would not happen.
All these things that he denied have come to be and, basically, we feel that the present situation gives us abortion on demand.
Mr. Kilgour: Can you tell us why in your judgment there are more abortions, far more abortions, I understand, in provinces such as British Columbia and Alberta than there are in, say, provinces like Prince Edward Island?
Mrs. Murawsky: I am very concerned about that, and something that was brought to my attention a few weeks ago, the incident at the Surrey Hospital in British Columbia when the head of the medical staff there, and his name escapes me, Forrest or something, when he was asked, and it was reported in the Globe and Mail, why there are more abortions in British Columbia than anywhere else, one out of every three pregnancies in British Columbia, the unborn child is killed by abortion, and he said it must have something to do with the affluent society here.
Mr. Kilgour: Thank you. Is it true that, as has been alleged, that in fact there are more girl babies being aborted than boy babies? Can you shed any light on that?
Dr. de Bellefeuille: Yes.
Mr. Kilgour: In French, if you wish.
Dr. de Bellefeuille: There is a difference in the number of female fetuses because in most cases the sex of the fetus is not known in advance.
Mr. Kilgour: If that is what is happening, is it not like a sort of grotesque slot machine, that people are having the annual amniocentesis test and then deciding it is a girl baby and then having an abortion, is there some basis in fact for that statement?
Dr. de Bellefeuille: The experts I know who give amneocentese tests generally do not accept to administer them simply to determine the sex of the child. I do not think many tests are done with that objective in mind. The geneticians I know personally assure me that they are in no way ready to accept to administer amniocentesis tests with that objective in mind. Some must be done for that reason, but the Canadian Committee on amniocentesis has not taken that attitude towards the prenatal diagnostics.
Mr. Kilgour: Fine.
Dr. de Bellefeuille: Since we are on that topic of amniocentesis, I would like to point out that eugenics or genetic abortions made based on the results of the tests represent approximately one out of every 2,000 legal abortions in Canada at present.
Mr. Kilgour: Section 7 of the proposed Charter of Rights talks about the right to life. Is it your view that this will result, if it becomes law, in the same situation that the United States Supreme Court created after I believe 1973 with respect to the provision in their constitution vis-a-vis the unborn babies of that country?
Maj Connors: Well, it is speculation, of course, but the trend in the United States to the point where it is at present would appear to have been very largely influenced by the decisions of the U.S. Supreme Court rather than any express legislation as such.
One can, however, wonder what may happen over the period of the coming four years in this regard, whether this will continue or whether in fact it will be arrested and perhaps turned around.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Kilgour. The Honourable Senator Stanbury followed by the Honourable James McGrath, and I would remind the honourable members that we have overspent our time.
The Honourable Senator Stanbury.
Senator Stanbury: I will be very short, Mr. Chairman. Rather than dealing with the issues I want to get your idea on what we should be doing with the Charter.
Perhaps to do that I should ask you just for clarification, I believe your position is that life begins at the moment of conception, and then under what circumstances do you condone abortion, or are there any circumstances at all under which you condone abortion?
Maj Connors: No, sir, there are no circumstances under which we condone abortion.
Senator Stanbury: Mr. Allmand is suggesting that I ask whether you are making that categorical statement, the one you just made, regardless of whether it causes the death of the mother?
Maj Connors: Well, sir, if I can just respond to that. The number of instances in which the mother’s life is indeed in great prejudice because of her pregnancy are so rare that statistically they are insignificant, they are right off the board.
All I can say in this particular regard, we are told by the experts it is well under one per cent of live births occurring in Canada and this is several years ago, and there is constant improvement.
I can tell you as a fact that I was executive director and chief executive officer of a large acute care hospital in Winnipeg for some eight years. We had a very active obstetrical service, I can assure you, and during my eight years at the helm of that hospital we never lost a mother in childbirth and we certianly never, even inadvertently, caused the death of her child to bring her through it.
These are facts
The Joint Chairman (Mr. Joyal): Doctor de Bellefeuille.
Dr. de Bellefeuille: I would like to point out that the death rate for mothers presently is of the order of 6 per 100,000 people and that the death rate following abortion is on the same scale.
Senator Stanbury: Thank You.
I am sorry.
Dr. de Bellefeuille: I could quote Dr. Genest from Montreal, who is quite an authority on kidney diseases and high blood
pressure, and Dr. Paul David of Montreal who is a world renowned cardiologist; they have both stated in public that during their careers, which has spanned some 25 years for both of them, they have never had to recommend an abortion to protect the mother’s health.
Of course, such a thing could happen. However, in that case, the doctor treats the mother as he must. Perhaps that would be the only real form of therapeutic abortion which might exist, but it would be extremely rare.
Senator Stanbury: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Stanbury.
Senator Staobury: Another question, please.
The Joint Chairman: Very short, please.
Senator Stanbury: I really just wanted to understand whether there are provisions in any of the provincial charters, bills of rights or charters of human rights which give this right and which express this right now in a way which you would find acceptable for a federal charter?
Maj Connors: I reviewed all of the legislation of our ten provinces and two territories ten years ago in connection with another exercise having to do with the kinds of services hospitals are providing in Canada, and unless there has been legislation since that time that I am unaware of, my answer would be in the negative, sir.
I am not aware of any express legislation in this regard.
Senator Stanbury: May I ask just if you are aware of any other model that you would like us to follow in any other jurisdiction.
Maj Connors: Well, prior to the changes brought about through the Omnibus Bill in 1967, 1968 and proclaimed in 1969, we did have, it seemed to me, some might disagree, we did have, it seefl1ed to me, sufficient protection in our laws to provide protection for those who were involved in the delivery of a child who inadvertently died during that delivery in efforts to save the mother’s life at that time. Consequently I always look askance at the proposition that we have to bring about the changes that were proclaimed in 1969 to afford this kind of protection, and I really am surprised.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Stanbury. The honourable James McGrath suivi de monsieur Corbin, pour conclure.
The honourable James McGrath.
Mr. McGrath: Mr. Chairman, I have one or two very brief questions but fairly important ones which, in my view at any rate, certainly I would think commend themselves to the finely tuned mind of my colleague Mr. Robinson.
In the procedure described as hysterotomy, you state that where a child is removed in a procedure similar to a Caesarean section, if the baby is wanted, his or her breathing passages are
cleared of mucous and survival care is undertaken by pediatric and intensive care personnel in the hospital’s nursery. The baby will continue to grow in the normal way when given this kind of support. If the baby is unwanted, no attempt is made to clear the breathing passages at delivery and he or she is placed in a bucket or other receptacle and left to die.
Dr. DeVeber, when he was here, described certain procedures in which medicine is now looking upon the unborn child as a patient in his or her own right, or its own right, a procedure called fetology, and I just want to try and reconcile that procedure with the Criminal Code because, if we speak in terms of the protection of the unborn, then we have to address ourselves to the law as it presently is, and Section 206 of the Criminal Code describe a human being in terms of the abortion procedure.
A child becomes a human being within the meaning of this act when it has completely proceeded in a living state from the body of its mother, whether or not it has breathed, it has an independent circulation, or the navel string is severed.
Then they go on in Section 206(2) to state a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.
It would seem to me that the procedure described as hysterotomy, where if the child that is so removed is unwanted and not given the support systems necessary for its survival outside of its mother’s womb, then that to my untrained legal mind would seem to be homicide under Section 206.
I would just like you to respond to that.
Maj Connors: Yes, sir.
I find nothing inconsistent in what you say with my own beliefs in this regard, and certainly my construction of this particular clause in the Criminal Code would lend credence to what you are saying.
In fact, several years ago I was speaking to a large congregation in a church and I used American figures in discussing and describing hysterotomy abortion because it seemed to me inconceivable that we would have even one in Canada in light of our law, and yet I learned later that in 1977, for example, Statistics Canada revealed that there were no fewer than 576, that is one percent of 57,564 abortions performed in this country, and I have not heard of a prosecution.
Mr. McGrath: Mr. Chairman, this is my final question because I do not want to try your infinite patience.
Is it fair to say that abortion procedures are overtaking the law as it is? In other words, the present law, designed with good intentions to protect the unborn against unnecessary abortions, medical procedures have overtaken that?
Maj Connors: Yes, sir. I think that in actuality the progress of medical science on one hand and what is happening with regard to abortion on the other hand have in fact now quite overtaken our law.
Mr. McGrath: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, honourable James McGrath.
Mr. Corbin, to conclude.
M. Corbin: Thank you, Mr. Chairman. I will be brief. I would like to put my question to Dr. de Bellefeuille more particularly because of a comment he made during this morning’s meeting.
Of course, this is a personal point of view but I would like to ask him what he thinks of the position of the medical profession in general, a profession which is generally supposed to have pronounced the Hippocratic oath to respect all forms of life and all forms of human life.
I sometimes get the impression the medical profession in general seems to want to let the legislator pronounce himself on that very serious and, for some, delicate question of abortion.
Why is the medical profession so divided on the question of abortion?
Would you have any additional comments to add beyond what has already been said?
Dr. de Bellefeuille: I will answer to the best of my knowledge in my name only and not in the name of this organization.
I believe that the medical profession, as you say, is divided on that question but I think that the dilemma has been presented in far too simple a manner, for or against, and I think certain fine distinctions perhaps have not been made.
I am convinced that the majority of doctors are opposed to abortion on demand or generalized abortion for whatever reason. I believe that most doctors rather think that certain very special situations as were described this morning can turn up which might make it necessary to interrupt a pregnancy, but in general, the diverse economic, social and whatever other reasons usually invoked do not have enough weight, put in the balance against a human life.
That is what I think.
Mr. Corbin: Thank you, doctor.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Corbin.
On behalf of this Committee and on behalf of Senator Hays who had to leave at eleven thirty, I would like to thank you very warmly for your presentation and your contribution to our work, Mrs. Murawsky, Dr. de Bellefeuille, Major Connors and the other ladies representing different areas of Canada.
You will realize how difficult it is when the time comes to decide such issues because we always make reference to one set of values and conscience, and any time Parliament has to
consider such a question, usually there is no party line, it is a free vote in the House of Commons.
I am quite sure that the members of the delegation this morning will understand the reason for such an attitude on all parties.
Thank you very much indeed.
I would like at this time to ask the Canadian Citizenship Federation to come to the witness table so that we can continue our proceedings with them.
It is an honour for me, on behalf of all the honourable members of this Committee, to welcome this morning the representatives of the Canadian Citizenship Federation, [Translation] and invite their president, Mr. Nicolas Zsolnay to make the usual comments and remarks and I then believe he will be available to listen to the comments or entertain the questions of the hon. members of the committee, but first of all I would ask Mr. Zsolnay [Text] to introduce the other members of his delegation this morning.
Mr. Nicolas Zsolnay (President, Canadian Citizenship Federation): Distinguished Chairman, members of the Committee, in order to be better understood, I would like to introduce our organizatin and members of our delegation.
To my right I have Mr. Eric L. Teed. He is a resident of St. John, New Brunswick and is a past President of our Federation, a former MLA of New Brunswick. To my left I have Professor J. B. Rudnyckyj, Professor emeritus of the University of Manitoba and former Commissioner of the Royal Commission on Bilingualism and Biculturalism.
The historical background of our movement and the objectives of our Federation are described in appendices.
Our Federation is an umbrella organization comprising not only local branches and regional citizenship councils, but also other national or local organizations who, among a wide range of objectives, all share with us the concern for good citizenship. Such member organizations include hundreds of smaller groups of organizations with a membership adding up to several hundred thousand Canadians. The majority of those who belong to our citizenship councils are Canadians of different ethnocultural backgrounds. They are first generation Canadians who share a deep concern about Canada’s future as a nation and about the constitutional framework which will shape our common future.
Some of these groups already have sent their spokesmen with presentations to this Special Joint Committee. They have made their particular contributions to the hearings by focussing on their special group interest. We do not wish either to duplicate or to weaken their suggestions.
The principal aim of our Federation is the preservation and promotion of good citizenship. Therefore, we are pleading
before this Special Joint Committee and are asking that all presentations be examined and synthesized in the light of CIVISM.
Our intention is to emphasize principles rather than to search for legalistic wordings or specific amendments.
Whereas Canadian patriotism constitutes a common bond among our members, we firmly believe that the time has come to patriate Canada’s constitution. While we sincerely deplore the present situation of dissent, no one among us can honestly pretend that provincial unanimity on key issues could be reached within reasonable delay. Therefore we accept as timely, and inevitable, the historically imperative initiative and the unilateral action of the Canadian government.
We deplore the fact that the patriation issue and the entrenchment of a Charter of Rights and Freedoms became, to a great extent, a partisan affair. With respect to anybody’s best intentions, we did expect, and would have much preferred, an interpartisan approach if necessary, even through a Royal Commission or a constituent assembly with advisory powers. We applaud all those organizations which, through their testimonies, succeeded in keeping these hearings as much nonpartisan as possible.
We also believe that patriation without an amending formula would not mean more than an act of tokenism with insignificant, only symbolic value.
The future choice of an amending formula will be the responsibility of those governments who will be ready to co-operate for a solution without putting forward other unrelated interests. Since Fulton and Favreau, our best constitutional brains conceived a number of workable formulae. One such proposition can be found in Part V of the proposed act, too. It is one usable proposition among several others, not perfect but not worse than the others.
We hope that our federal and provincial governments will not shy away from the task and will make serious efforts to utilize Part IV of the act in order to defuse a rather chaotic situation with such components as partisanship, fractionalism, distrust and overacting righteousness.
In the light of CIVISM, we would welcome an amendment to the Act, as already suggested by some other delegations, which would endow our smallest province, Prince Edward Island, with some means to influence the outcome of future amendments within the framework of the present act.
Our federation, by its very nature, did extensive pioneering work in helping to create public awareness of human rights. We also did our share in advocating their enactment in provincial and national laws. Human rights are an essential part of our system of civic values. Being consequent to our former actions, we are supporting the entrenchment of a
Charter of Rights and Freedoms into the Canadian constitution.
We would still prefer and lend our enthusiastic support to an agreement between our governments in this respect. While such an agreement is beyond our sphere of influence, we accept facts as they are and will limit our comments to the text of this act which is the subject of these hearings.
It is a countrywide consensus among 0ur members and supporters that rights and freedoms cannot be maintained without the acceptance of responsibilities and civic obligations.
Nowadays, new immigrants are imbued with ample notions of rights and freedoms of which, having been brought up under dictatorships, many are hardly able to grasp the real meaning. This is a complete reversal of the past when novices had to accept obligations first, before reaching some rights or freedoms. While that situation was unjust, the present extreme is often disruptive to our society.
For this reason, we strongly suggest, with the support of all our members, that a paragraph be added to the text of the Charter or, at least, mention of this should be made in a preamble, stating that rights and freedoms must be earned. They must be earned by the acceptance of responsibilities and obligations. Rights can only be guaranteed through obligations and freedoms, can only be maintained by adopting individual and collective responsibilities.
Serious doubts have been expressed by outstanding Canadians about possibilities of the interference of judicial powers with the ultimate power of Parliament, which might occur through a liberal interpretation of some rights or freedoms.
In our opinion, such legitimate doubts could be alleviated by the inclusion of a preamble into the act. Principles enshrined in a preamble would be used by the judiciary as guidelines for the interpretation of the law.
We suggest that the Special Joint Committee give serious consideration to the constitutional preamble which has been submitted to the Prime Ministers’ conference by the Province of Ontario. The ethical principles, as expressed in this preamble, would have a solidifying effect to all consequences of this act.
Our movement was a pioneer in the developing interethnic and intercultural relations on a wide scale among Canadians. De facto, the chain of citizenship councils across our country became the cradle of Canadian multiculturalism. The multiethnic fact of contemporary Canada was first recognized by the B and B Commission and then elevated to legal status by policies of the federal and several provincial governments.
Consequently, and obviously, we wish to add our voice to previous suggestions for the entrechment of multiculturalism, the right to pursue and to preserve ethnocultural heritages. Our preference would be a new section within the act, eventually combined with Section 15 establishing cultural rights and freedoms in the context of unreversable multiethnic facts of the Canadian social fabric. A minimum requirement seems to be the enshrinement of multiculturalism, either in a preamble to the Charter or to the constitution.
Our concern for the social development of Canada’s Inuit and Ameridian peoples dates from the early stages of our movement. We believe and suggest that their special status must find a place and be anchored in the constitution. We not only believe that our society owes this to them, but we also maintain the view that there is some historic urgency to embrace their problems. If they will be left in a sort of constitutional limbo or vacuum, the door will be wide open to the penetration of ideologies and to the spawning of actions which might become as detrimental to their future as to the general development of our country.
Regarding the enumeration of rights and freedoms in some sections of the act, and especially in Section 15, we strongly suggest to abstain from going much further than the Universal Declaration of Human Rights and those international covenants which Canada already ratified.
We support only a few carefully selected additions, such as the protection of physically handicapped persons or the “equal right of men and women” to the enjoyment of rights and freedoms, as recommended by the Canadian Human Rights Commission. We definitely disapprove the enactment of a long list of notions for rights and freedoms which, so far, are not sufficiently tested as to their practicality. Their entrenchment might lead to controversies and chaotic situations and might prove to be right those who opposed the entrenchment of a charter at all. Mental handicaps, political beliefs, sexual orientations or other controversial social problems can reasonably well be dealt with with ordinary legislation. We agree with those who drafted the present text; they have no place in the constitution.
All those Canadians who studied the proposed act, who weighed and discussed its implications, who made an effort to agree among themselves and to delegate witnesses to this Special Joint Committee are striving for best solution. To put our opinions and suggestions in the proper light, we must admit there are only a few constitutional experts among our members. There are, however, a great many among us who are actively involved in community life, who acquired a grass roots common sense expertise through their quest for higher standards of CIVISM.
The evaluation of our efforts will be at your discretion, distinguished Chairmen and members of this Special Joint Committee.
Thank you for inviting us and for listening to us.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Zsolnay.
I would like to invite now Mr. Hawkes, followed by the honourable Bryce Mackasey and Mr. Robinson.
Mr. Hawkes: Thank you, Mr. Chairman, and welcome to our group, for a brief time at least.
Could I ask you, first of all, how much notice you had about your appearance here today?
Mr. Zsolnay: We got a phone call on Monday.
Mr. Hawkes: On Monday?
Mr. Zsolnay: Inviting us for Tuesday.
Mr. Hawkes: Inviting you for Tuesday, that is a bit short.
The nature of your organization is such that it is nationwide. Looking at some of your appendices, I can see a spread of people from coast to coast.
What opportunity have you had for adequate consultation coast to coast in the preparation of the material? Have you been forced to go with a smaller executive committee, or have you really had time to consult your memberhsip?
Mr. Zsolnay: First of all, the subject is not new to us. At previous national symposiums we have discussed the constitution. As I have mentioned in the brief, human rights has been one of our concerns since our existence going on 40 years. The subject is not new.
Secondly, when we read the text of the act, we prepared a questionnaire which we sent to a select number of members. We did not want to poll all our members, but polled the most active ones and members of the Board.
Their opinion was very close to this. It was also discussed at the Board meeting. So it was very close to what we have submitted.
Many of the answers to the questions were 90 per cent to I 0 per cent, or 80 per cent to 20 per cent and the 90 per cent or 80 per cent were always in favour of these submissions.
Mr. Hawkes: I have tried to look at your questionnaire, and there is a lot of material here.
However, I do not see a question which would enable you to draw a conclusion that you support this unilateral action by the federal government. The patriation issue is explored, but
this is a bill with 59 sections, and I am wondering specifically what is your mandate to draw the conclusion that this process with these significant amendments to be made in Britain is supported by your membership.
Mr. Zsolnay: If you look at question 4, you will find the answer.
Mr. Hawkes: Question 4 refers to patriation. There is a good deal of public support in terms of patriation of the constitution.
But the point I am trying to make is that the bill before us is not one which deals with patriation, but with a much more complex matter, including the Charter and so on.
You are indicating to us, in your brief, that your membership supports unilateral action by this government on the 59 clauses.
I suggest to you that your questionnaire would not provide you with an answer to that, but only with an answer to the patriation issue.
Mr. Zsolnay: It is probably 20 per cent or something of that kind which said they wanted the agreement of all provinces, or maybe 10 per cent. I do not have the exact figures.
But overwhelmingly the position was as I have stated.
In the case of those who did not read the act and formed their opinions on the basis of newspaper reports, the split was about 50-50. So that 50-50 is not representative, because only a small fraction did not take the trouble to read the act.
Mr. Hawkes: Part of the responsibility of your group, part of what it intends to do is to increase public awareness of the responsibilities of citizenship. In particular, you have had a mandate over a period of time to deal with newcomers to Canada, to help them integrate into Canadian society. In that public education process, what kind of public education you have been doing about our system of government, specifically the issue of whether or not some levels of government are subservient to others, or whether, in fact, provincial governments, the federal government, are sovereign within their own areas of jurisdiction; specifically, you have mentioned in part of your brief that many of the people who support you idea have come from countries with dictatorships; in explaining to new Canadians how our system protects us from dictatorship, do you deal with the issue of sovereignty of provincial and the federal governments?
Mr. Zsolnay: Our cultural backgrounds are many, but it is not true to say that many come from dictatorships; some do.
Those who grew up under a dictatorship find it difficult to understand our system, especially in a period of three years which is now the. requirement for citizenship.
So we are organizing regular seminars and inviting politicians and professors of higher education.
In that way we are trying on a regular basis to educate our members and those who are interested in coming to these meetings.
We have also conducted essay contests on citizenship. It is not nation-wide, but some of our local Councils have these contests. There is a participation of about, say, 30,000 children- that was in one contest, for instance.
Also when we are celebrating national holidays we have good speakers, and in the preparation process there are committees working together-all education leading to this end. So this is the way we are doing it.
Mr. Hawkes: May I ask you one final question.
A characteristic of a lot of dictatorships in the world is the existence of a Charter of Rights, as one part of a constitution.
But those dictatorships flourish because of the closeness of the relationship between those who govern, the politicians, of whatever persuasion, and the institutional subjugation of things like the courts.
If you have a system where one group makes the laws but also controls the courts, and the courts interpret the laws, then you have some of the tools which a dictatorship requires.
Now, if there is no other level of sovereign jurisdiction, in those circumstances, apart from those political figures, then that is what we are talking about in dictatorship.
One of the Indian groups which has appeared before us, the aboriginal groups, said very clearly that they wanted the concurrence of the provinces in constitutional change, because they found historically that that balance of power was important to their protection, and that any level of government which operates solely will have more of a tendency to be dictatorial, if you like.
Do you see a problem in Canada, a potential problem, 20 or 30 or 40 years down the road, if we handed over the courts a document that is not as clear and specific as it might be and yet retain the power of a Prime Minister to appoint those people who interpret that Charter?
Have we not got a situation which is dangerous to democracy and to citizens when we leave one side of the equation untouched and then hand something like this to that situation. Is there not a potential danger to citizenship in that?
Mr. Zsolnay: There is, and I think this potential danger was one of the motivations which pushed some of our members to take a decision.
I do not wish to pinpoint any province; but there is already this trend in Canada, and that is one of the reasons why people from Quebec, for instance, the ethnic people and the English speaking people in Quebec, would like to have a federal Charter of Rights; because they do not trust our present government.
In Quebec there is an excellent Bill of Human Rights, referred to by some experts as the best bill in Canada and probably one of the best in North America; but the government does not necessarily respect the same principles which are entrenched in this civil rights charter or bill.
Therefore, more and more of our members who previously were satisfied with having such rights entrenched only m provincial bill, are now pushing for federal entrenchment.
Now, whether this will solve or bring about their dreams, that is another question.
We are definitely very much in favour of clarity in the text in order to avoid this. It goes beyond our mandate.
We would like to see the Supreme Court also reformed and to have a constitutional court which will deal with such questions with judges who must not be experts in civil law and other things; and this is how we would like to iron out the possible difficulties which you have mentioned, and we are fully aware of them.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.
The honourable Bryce Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman.
I would like to say that I am very pleased that an organization of your statute would appear here today to support the concept of what we are doing, and I say that not only because of your reputation in Quebec in relation to this field, but because also your delegation includes a former member of the Legislature of one of our great provinces and a former member of the B and B Commission.
I would like to ask or deal with a simple point, because time is of the essence here.
You were not called last Monday, but you had anticipated a call. It really was not much of an impediment, and I would not like to leave the mistaken impression that Mr. Hawkes was probably not trying to create that somehow you just did not have enough time to prepare an adequate brief.
Mr. Zsolnay: The only impediment was that our member from British Columbia could not make it at such short notice.
Mr. Mackasey: But you feel from your conversations with him that he approved the document?
Mr. Zsolnay: Yes. Definitely.
Mr. Mackasey: Now, you will correct me if I am wrong. Again, I am sure you will disagree with some of the 59 clauses, and you have suggested improvements and that they be made a little more effective. We all agree with that.
But you do agree, perhaps reluctantly, with the concept of unilateral patriation. Am I right on that point?
Mr. Zsolnay: Yes.
Mr. Mackasey: You also agree that there should be an enshrinement of the Charter of Rights and Freedoms. You agree, further, with the concept of a bilingual country, but a multicultural one. You also agree that there should be some recognition, after all these years, of the aboriginal rights of the native people, even if we are still negotiating what they are and how compensation should be provided.
Finally, you do agree with the amending formula, and this pleases me, because yours is perhaps the first brief which has caught the significance of Section 4 of the Act, the significance being that over the next two years it is possible, hopeful, probable, that the provinces and the federal government will sit down and amend the proposed amending formula or come up with one that is unanimous, or in that period of 24 months make progress, if you make progress on the amending formula, in other areas, thus diffusing what is potentially divisive. In other words, your Charter reflects the reality of the situation and the experience that Professor Rudnyckyj had in his years in the B and B-the practicality that there is no other way that we can arrive at a solution or bring the Charter home. There is no other way of having a Bill of Rights.
Am I summanzmg you accurately? Would you like to expand a little on any of this? Mr. Teed?
Mr. Eric L. Teed (Past President, Canadian Citizenship Federation): Mr. Chairman and honourable members, I think you have put it to a large degree as the brief is presented, but there is one small matter which we feel should be drawn to the attention of the Committee, and that is the question of citizenship.
In various parts of the Act you have “citizen of Canada”. “Permanent residence”, “members of the public” and then you have just plain “Canadian”.
With respect, if the Act is to mean anything there has to be some clarification. I do not know what a citizen of Canada is because it is the creation of the Parliament of Canada. I think there is great danger, which I do not think needs to be pointed out, that merely to say that a citizen of Canada has certain rights, leaves it open to Parliament to define what a citizen is and effectively to strip the effect of that section.
In Section 20, I can say I do not know what a member of the public is. I do not know what that austere “public” is. I would presume that somebody is not “a member of the public” and that means somebody is not going to have one of these rights.
The section in particular deals with information, and I gather that a member of Parliament is not to be classed as a member of the public for the purposes of that section, or maybe a member of the Legislature is not to be classed as a member of the public, and, therefore, he is deprived of his rights.
Then we have the term just a plain “Canadian”. Frankly, I am not quite sure if a Canadian is or is not a citizen of Canada.
Then you have the term “permanent resident”.
Now, if the constitution of Canada is to mean anything, then there must be some recognition that a Canadian is something different from a non-Canadian. There is a growing mood-and we have resolutions against it-that there must be some distinction, and in some provinces you find they are extending the vote and anybody living in the place is a resident and has all the rights and privileges of a Canadian. So we feel in any charter or bill of rights there should be some clarification so that when we talk about a Canadian at least it is intended to mean that we are something different from somebody else.
The mere fact of residing in a country as a resident, in our view, does not make a person a Canadian.
This is a real problem. A new immigrant comes in, a new person comes into the country and the question is often asked: Why should I become a Canadian? I have come across this more than once. “I am not going to become a Canadian. I can work here. I am a landed immigrant, but I do not think I will become a Canadian because I want to retain allegiance to my own country.” This is very disturbing.
Here we are saying we must repatriate the constitution and cannot leave it in the hands of somebody else and that we have to look after it ourselves; at the same time, we find other groups busy running around and saying that everybody must be equal and that there must be no political difference. I think that is not the basis of a country. A country is a political institution.
We are hoping that when this has been gone through again the Committee will come to the conclusion that whatever a Canadian is there must be a distinction between a Canadian and he must have something more than a mere visitor.
Mr. Mackasey: Mr. Teed, this is one occasion on which I wish we had more than limited time. I like your brief and the practical way in which you have approached matters. I wish I could deal at greater length with you with the. obligations of citizenship. This has been overlooked, particularly at a time in the evolution of this nation when it is something almost taken for granted without really having to work for it.
But I would like to raise a point which perhaps has not been made. Quebec does have probably the finest Charter of Human Rights in North America and was able to strike down what was a discriminatory preamble to Bill 1. We talk a lot about Bill IOI, but not Bill 1. They were able to modify some of the wording of Bill 101. People around here think discrimination was not practiced against English Quebeckers. But it was.
Finally, despite their strength, provincial legislation was able in the passage of one piece of legislation to remove certain basic rights, something which I will always regret having occurred in our province.
Mr. Rudnyckyj: I think that in all our constitutional planning, there is one deficiency, namely the danger of so-called transparent or invisible citizens. These are one-third of the population. I call them itrophones, anglophones, franco-
phones-and “itrophones” is a term introduced in 1974 in linguistics.
One of the very important points in our presentation is that concerning multiculturalism which is so far only a policy but not constitutionally secured as a provision.
In my opinion, our minimum requirement is to give it recognition in the preamble to the constitution or to constitutionalize the whole policy as it was presented by the Prime Minister in 1971.
So this is a point which, in my opinion, is very important as far as invisible or transparent Canadian citizens are concerned.
We spoke about the unborn citizens in relation to the previous delegation. We want to stress also the danger of invisible or transparent citizens who do not exist legally, constitutionally, but who can be made visible and non-transparent if our point, namely, the entrenchment of multiculturalism, or even, as a minimum requirement, that the preamble should mention this in the introduction to the new Canadian Act.
To conclude, I would like to stress the priorities in procedure.
In our opinion, patriation is the first priority, is the external matter, and therefore it is a governmental matter. It is noy a question of it being unilateral. It is a Canadian matter, and the Joint Committee of the Parliament is handling it.
The second priority would be all those matters not involved in patriation and the amending formula.
So, please, ladies and gentlemen, for the future, remember that this thing which is prior and posterior-the prior thing for us as Canadians, visible and invisible, is the patriation and the amending formula; posterior, which can be for two or three or four years, is the matter of Sections 91 and 92 of the BNA facilities.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey.
Mr. Robinson, followed by Mr. Kilgour.
And I would like to remind honourable members that we have overspent our time with our guests.
Now Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman.
I would like to join with Mr. Hawkes and Mr. Mackasey in welcoming this delegation before us.
I know that you have a very broad national representation in the sense of individual representatives from many different provinces and also that you have a very distinguished list of honorary patrons. I am sure your honorary patrons would be particularly proud of the brief and with the performance of your delegation before us. You have done them a great service.
I have a number of questions relating to specific areas of your brief, but before I get to them I wonder if you might just indicate, I assume in drafting this brief, that you were essentially responding to the concerns expressed in Appendix 4 in your questionnaire which went out to some members; would that be a correct assumption for me to make?
Mr. Zsolnay: Yes, we had some additional input but this was the main source.
Mr. Robinson: When you say “additional input”, would that be from yourself, then, as the drafter of the brief?
Mr. Zsolnay: Partially from myself, partially the Montreal Citizenship Council which is close to me and one of our most active members and we have most of the Quebecois input, we have it from that, and just because I was more concerned about Western and Quebec’s opinion than the others were I knew the consensus is much broader, so I did a little more investigation there.
Mr. Robinson: Thank you.
Mr. Zsolnay: And I asked also intellectuals who are not necessarily members, professors, and you see one of our questions is: does your opinion coincide with those of others in your region? Most said they are uncommitted but some said yes or some said no.
Mr. Robinson: Thank you, I appreciate that answer. Now, turning to some specific points in your brief, first of all at page I you refer to the question of an amending formula and some of the choices which were available to the government since Fulton-Favreau, and you indicate, as you put it, our best constitutional brains conceived a number of workable formulae, and one such proposition can be found in Part 5 of the proposed act.
Just for the information of the Committee, could you indicate which constitutional brains conceived the formula which is found in Part 5 of the proposed act?
Mr. Zsolnay: I do not have names. You must ask probably Mr. Trudeau or Mr. Pitfield or one of them, but I think as I spoke to people, constitutional experts, they said there are certain points which we do not like, we would like to change probably the requirements of the percentage of votes required, automatic votes required for a change and so on, but none of them said to me that this is-everyone has their little pitfalls. So far for every proposition there was always someone who said no, we do not like it, but usually those who said no, we do not like it, they did not come up with a better one, in the beginning from the late, God bless him, John Lesage, or Mr. Bourassa or others, or Mr. Pitfield or anyone else.
Their only reply was: unanimity, unanimity, but I tell you frankly that many, many Canadians just do not believe in that, that unanimity can ever be reached, and if unanimity is meant seriously there is this plan here which Mr. Mackasey men-
tioned, which we put into our brief, which is really a serious effort, and with honest interest it could be done.
For every part of this-and this is partly in answer to him which he did not receive from my fellow delegates-every where we say here, if you watch these paragraphs, we go along, the first sentences, the methods on how we achieve this act or the planned changes, we dislike them, but we simply do not see and do not believe in any better solution and we accept the facts of life. This stagnation, this drifting to take I 00 years to get a flag and then have this terrible flag debate, so especially new Canadians and first or second generation immigrants, they are fed up with that. We have a big stake in this country.
Mr. Robinson: Mr. Chairman, I am sorry to interrupt Mr. Zsolnay but my time is limited …
Mr. Mackasey: This is very interesting, why interrupt? It is educational, we should listen.
Mr. Robinson: I understand your answer, then, the constitutional brains are Mr. Pitfield and the advisors …
Mr. Zsolnay: It might be, I do not know.
Mr. Robinson: We do not know who they are.
With respect to your paragraph (f), I assume you would agree that as a minimum Canada should be living up to its obligations under the International Covenant on Civil and Political Rights under the proposed legal rights; is that correct?
Mr. Zsolnay: Yes, I think we should not go farther.
Mr. Robinson: We should at least go that far?
Mr. Zsolnay: We should go that far but very carefully if we go farther than that. There is now a list according to news reports, and I was listening to many of the hearings at night and some people claimed there are about 100 suggestions to put in Section 15 or around that, so if you would increase that to I 00, I think that is too far, and certainly I am quoting three of them here which we were definitely against and our membership, it was discussed at seminars, national seminars, local seminars and we are definitely, for instance, against pronography and certain things, so we would like to expand our constitution into these fields.
Mr. Robinson: I think there may be some misunderstanding here, Mr. Chairman, perhaps the witness could clear it up.
You indicate that one of the three areas that you do not believe should be included is political beliefs,, which I find somewhat surprising for people who have in some cases fled from oppression on the basis of political belief.
Are you aware of the fact that political belief is included in the International Covenant on Civil and Political Rights, and presumably, now that you are aware of that, you would agree that at least should be included?
Mr. Zsolnay: I remember that was in. We had briefs that this should be accepted by Canada but I would still be very careful on that.
Do you wish to include Nazis, for instance, as a protected political belief or not? That is a very dangerous thing.
I would like to have a law but not to have it in the constitution. What are the political beliefs of Paul Rose? I mean, thank you, I had enough of that. Should we protect him and to what extent.
So we must be careful. We are not against dealing with these things but we think a special law would be enough on human rights, ordinary human rights bill or law, but not in the constitution where this can be twisted by a sympathetic judge or so. This is how we would like to interpret it.
Mr. Robinson: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
Mr. Kilgour on a question to conclude with our witnesses.
Mr. Kilgour: Thank you, Mr. Chairman.
I should immediately declare a conflict of interest being a past member of your provincial executives in Vancouver and in Winnipeg, so I am hopelessly committed to your cause.
I might in fairness to Mr. Corbin, who was kind enough to point it out to me, that these people that are your honourary patrons, namely gentlemen by the name of Trudeau, Fox, Axworthy, Fleming, are all their exofficio; is that not correct? And that is always the case?
Mr. Zsolnay: Yes, yes. That is in our by Jaws. At the time of Mr. Clark’s government the same Ministers have been asked, I mean the same portfolios, they have been asked and they all accept.
Mr. Kilgour: I have a whole bunch of questions until the Chairman tells me my time has gone …
Mr. Mackasey: David, could I just make the remark that they might not have to change that letterhead for another 20 years.
Mr. Kilgour: Mr. Chairman, I hope that does not come out of my time.
The Joint Chairman (Mr. Joyal): Go on, Mr. Kilgour, please.
Mr. Kilgour: You, sir, spoke of the, you called them the ultraphones, or nonfrancophones, nonanglophones. I think in Western Canada, where I am from, in every province the majority is nonfrancophone and nonanglophone.
Would you, for instance, speaking for that majority group in Western Canada perhaps favour recognizing other languages, German, Ukranian, Hungarian, as being official languages for Canada, or do you feel you could comment on that?
Professor J. B. Rudnyckyj (Canadian Citizenship Federation): Well, sir, I would refer you to my separate statement in Volume 1 of the B and B report which presented very clearly my point and I have not changed up to today, so I recognize and I would say, I would even go further to refer to the 1972 Constitutional Committee’s report which does the same as I proposed in 196 7.
So this is in my opinion a sine qua non; Canada has a future, a bright future, and I say I am now residing in Quebec and there is, since Mr. Levesque came to power, there is now a new sign, not la belle province, but Je me souviens. On my car I have another sign: Neo-canadien ne se souvient de rien.
I want to see Canada with its bright future and strong and free, and this is why I do not pay too much attention to tempi passati. I would like to see Canada one of the best countries on our globe and this is the effort in which I, as a member of this federation, as a member of many other things and as a member of the B and B Commission, tried to do and this is my answer to your question, sir.
Mr. Kilgour: I think we might disagree in the sense that I feel Canada is the most fortunate country on the face on the earth but I am sure if you think we are not there we are very close to it already.
Amongst your objections to the constitutional package as it is in the resolution you have outlined, I take it, all the objections in your brief and you have no others that you wish to raise?
Professor Rudnyckyj: No, I have personal, not connected with the federation, but I asked to be heard personally, as a former member of the B and B and other things. I have an amendment to Section 23 which in my opinion deals only with two groups and forgets about ultra phones. And this is a matter of linguistic rights, and my opinion was submitted to everyone of you gentlemen and everybody got it, so I think I do not need to repeat this.
Mr. Kilgour: Would you agree with me, sir, or any of you, that all of the nonanglophone, non francophone groups …
Professor Rudnyckyj: Ultraphone.
Mr. Kilgour: All right. Find Section 23 to be grossly unfair in the sense that it gives special treatment to two types of new Canadians?
Professor Rudnyckyj: I feel it is, frankly speaking, discriminatory, and I feel that it should be corrected and amended before it goes to the final approval.
Mr. Kilgour: Perhaps to the gentlemen on you right, sir, you would agree with me that the amendment formula under Section 5 discriminates, I suggest, very strongly against all but two provinces. Would you feel that your members across Canada would accept Section 41 in its present form?
Professor Rudnyckyj: Well, we would say that we should handle the matter on the federal level rather with the regions, with the concept of regions and provinces because the provinces have that Section 92 in the BNA Act, and if you want to deal on a federal level we should have a concept of regionalism which would, for instance, cover three Western Provinces as one region.
Mr. Kilgour: Yes, but with respect, I profoundly disagree with you, sir, if you think that the people of Prince Edward Island who, as I read Section 41, are a fourth class province, and the people in Manitoba and Saskatchewan who are a third class province, the rest but Ontario and Quebec are second class provinces, and Ontario and Quebec are first class provinces, surely you are not telling me that your members from other than Ontario and Quebec would accept Section 41 in its present form?
Professor Rudnyckyj: Well, I agree that they would not accept.
Mr. Kilgour: So you are stating your own Ontario or Quebec perspective on that, would you not agree?
Professor Rudnyckyj: Yes. I started my article in the most recent language on society. This is official language publication and I would recommend you to read the eastern bias, this is Ontario and Quebec bias.
Mr. Kilgour: May I have one more question?
The Joint Chairman (Mr. Joyal): Well, your time is over spent.
Mr. Kilgour: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Kilgour.
On behalf of all the honourable members of this Committee I would like to thank Mr. Zsolnay, Professor Rudnyckyj and Mr. Teed for their contributions to our discussions and debate, and I am quite sure that the point of view that you have expressed to us this morning will certainly be given extended consideration when the time comes to amend and improve the proposed motion that we have under consideration.
Thank you very much.
I would like to now call the representatives of the Federation of Independent Schools in Canada to come and take their place at the witness table.
It is my pleasure on behalf of all the honourable members of this Committee first to apologize for the delay and thank you for your courtesy in waiting even though we start our exchange and dialogue this morning rather late in accordance w1ith our previous agenda.
I would like to welcome on behalf of the Federation of Independent Schools in Canada Mrs. Molly Boucher, Mr. Patrick Whelan and Mr. Garry Duthler. I understand that you have had an opportunity to see that we usually ask our guest witnesses to make an opening statement and then ask them to
accept questions from the honourable members of this Committee.
I understand Mrs. Molly Boucher will have the introductory remarks. Mrs. Boucher.
Mrs. Boucher (President, Federation of Independent Schools in Canada): Thank you, Mr. Chairman.
First of all I would like on behalf of the Federation of Independent Schools in Canada to thank the Committee for giving us this opportunity to express our point of view.
I would also like to introduce my colleagues. On my right hand is Mr. Garry Duthler, an Ontario Board member of the Federation, and on my left is Mr. Patrick Whelan, who is an officer of the Federation.
We have prepared a brief which has been distributed to you. You have not had the opportunity to look it over so I propose to go over the brief, perhaps I will not read it in its entirety.
First of all, the Federation of Independent Schools in Canada represents schools which enroll in excess of 90,000 pupils. These schools do include Catholic, Protestant, nondenominational and other private schools in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Quebec. We have listed them for you under Appendix A of our brief.
Now, in making this presentation with respect to this proposed Charter of Rights and Freedoms, our federation does not intend to express either favour or opposition to the enshrining of the Charter. We feel we are not competent, it is not within the scope of the Federation to make this statement except we would like to say that if rights are entrenched, they must be stated in clear and specific terms.
We are particularly concerned about Section I and Section 24 in this regard. Our specific comments and our specific concerns, however, will be limited to those which relate to education, specifically as it affects independent denominational, nondenominational and private schools.
We have a very deep concern with regard to Section 15 of the Charter of Rights and Freedoms dealing with the nondiscrimination rights.
Now, Mr. Chairman, we are not so much concerned about what this section proposes to say but particularly with what it fails to include. In addition to the exemptions that are granted in Section 15(2) for affirmative action programs, we as a Federation feel very strongly that other exemptions ought to be provided.
It is our belief that race, national or ethnic origin, colour, religion, age or sex may be bonafide qualifications or requirements for certain exclusively charitable, philanthropic, educational, fraternal, religious or social organizations or corporations that are not operated for profit and do have as a primary purpose the promotion of the interest and welfare of these particular organizations or corporations.
We maintain that it is a right of an identifiable group or class of person to associate together on grounds of belief, to conduct institutions in the field of education, and this corporate right then stands over against the individual right to
employment by a teacher of any other faith and subsequently against the right to continued employment where a person duly hired ceases to be in good standing in that community.
Now, there are provisions for such exemptions in the human rights codes of a number of provinces. British Columbia, Alberta, Saskatchewan, Manitoba and Ontario. We have included these statements in our appendices also. You will see that although they are worded differently, the intent is the same in each case.
Now, without this kind of protection or legislation, perhaps it may seem ridiculous but we could, if we followed this to the nth degree, envision a man going to the courts and claiming that he has been discriminated against because he was not hired as the dean of woman. Or, we could see, shall we say, a United church minister going to the courts to say that he has been discriminated against because the Catholic church refused to ordain him as a priest.
Now, these are perhaps laughable but I am sure that the founding fathers of the United States would have laughed equally loudly at the time of the writing of the constitution if anyone had said to him that the constitutional provision for the separation of church and state would, 200 years later, make it possible for one individual to go to the court and to prevent the saying of prayers in the public schools of the United States.
Now, because Section 24 of the proposed Charter of Rights and Freedoms is ambiguous, and because the Charter will take precedence over provincial legislation, we propose that Section 15 of the Charter be amended by adding another subsection, number 3, patterned after the wording of Section 22 of the Human Rights Code of British Columbia. We have worded it for the sake of convenience:
Where a charitable, philanthropic, educational, fraternal religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterised by a common race, national or ethnic origin, colour, religion, age or sex, that organization or group shall not be considered as contravening this Charter because it is granting a preference to members of the identifiable group or class of persons.
That is our first main concern.
We have another very important concern and this is with regard to minority rights. We note that in Section 23 of the proposed Charter the federal jurisdiction is being expanded to include further educational interests, not withstanding the fact that education has traditionally been the exclusive domain of the provinces, except for Indian education and of provisions of Section 93(3)(4) of the BNA Act.
Now, it is obvious to us that in a country where there are two official languages existing side by side, that language education rights are of great importance to many citizens, and rightly so. However, it is also true that to many citizens other considerations, such as the choice of a school’s philosophical or religious orientation are much more basic than the choice of language.
It is interesting to note that the BNA Act, where protection was extended in the field of education, this was done on a religious basis by allowing both the protestant and catholic denominational schools to operate. At that time language rights were not specifically considered, and so we applaud the extension of language rights because as a Federation we are committed to the advocacy of freedom of choice in education.
However, also for that reason, this Federation does have a concern about the apparent erosion of choices available on a religious or philosophical basis. Where there were separate schools existing at the time of Confederation, or at the time when the various provinces joined Confederation, the catholic separate systems have continued to develop. They have become fully fledged, publicly funded systems offering kindergarten through grade twelve, except for Ontario where the funding is only allowed through to the end of grade ten.
However, the so-called protestant system, if they still do exist by name, have become nonsectarian secular schools, thus eroding significant rights of the population in a significant number of provinces.
Because of this we would like to see the educational rights as expressed in Section 23 of the proposed Charter expanded. Education in the schools in our nation deals not only with the presentation and teaching of facts and skills, but equally with the presentation and teaching of ideas and values. Because in a democracy a government should not promote only one set of ideas or values, citizens should be allowed to choose freely among different educational alternatives.
So, Mr. Chairman, we advocate that in addition to other rights the right to freedom of choice in education be provided in the Charter of Rights and Freedoms. We believe that this would restore the original intent of Section 93 of the BNA Act to provide educational choice on a religious or philosophical basis, and it would also broaden such choice to allow for the much more pluralistic nature of our society today. In addition, it would reflect, and this has been mentioned more than once this morning, the international commitments that Canada has made by being a cosignatory to such United Nations declarations as the Universal Declaration of Human Rights, the Declaration of the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the Convention Against Discrimination in Education.
We have appended for the convenience of the members the relevant sections of these various UN documents. I would just like to draw your attention quickly to one or two. The one that is quoted most often is Article 26 Section 3 which gives parents the prior right to choose the kind of education that shall be given to their children. Also under the Declaration of the Rights of the Child the same thing is said, that responsibility for education and guidance of children lies in the first place with his parents and under principle 2 of that same declaration it says that the child should have the means to enable him to develop physically, mentally, morally, spiritually and socially and under the International Covenant on Economic, Social
and Cultural Rights under Article 13 it says that the state parties, which includes Canada, undertake to have respect for the liberty of parents and legal guardians to choose for their children’s schools other than those established by the public authorities under certain conditions, that they conform to regulations and so on.
The last one that I wish to bring to your attention particularly is Section 4 of Article 18 of the International Covenant on Civil and Political Rights which says that the state parties including Canada undertake to have respect for the liberty of parents and when applicable legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
In the light of Canada’s having signed these various documents, we believe that we should specifically incorporate the educational principles which are expressed therein the Charter of Rights and Freedoms of Canada.
Therefore the federation of independent schools proposes that Section 23 be amended by changing the title to read “minority and language educational rights” and by adding a subsection (3) which we have taken the liberty of formulating:
(3) Citizens of Canada, of either official language, shall have the right to have their children educated in schools or institutions of the culture, religion, or philosophy of their choice, and, where the number of such children warrant, to have provision out of public funds for such education.
The last section of our brief gives support to the Canadian Catholic Schools Trustees Association comments that were made to this Committee earlier respecting the continuation of the rights enjoyed by Catholic schools in some provinces under Section 93 of the BNA Act and we do support the amendments which were proposed by the Catholic schools and we have appended those again for your consideration and we hope adoption.
This concludes my opening statement, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Boucher. I would like to invite now Mr. Irwin to open our discussion with our witnesses, followed by Mr. Hawkes. Mr. Irwin.
Mr. Irwin: Mrs. Boucher it is a pleasure to have you here in Ottawa. I see you came all the way from Vancouver. In your opening, I very much appreciate that you list the provinces from west to east, usually we have them the other way around, starting with Quebec and ending with British Columbia.
Mrs. Boucher: It is our western bias.
Mr. Irwin: You indicated that there are 90,000 pupils within your umbrella group but you do not indicate in your brief the nature of the groups. In talking to you I understand that you have Mennonite groups and Catholic separate schools and a whole myriad of school systems. Could you expand on that at all? I think it is important.
Mrs. Boucher: Certainly. First of all because there is no catholic separate school system in Manitoba or in British Columbia, many of the Catholic schools in those provinces belong to the independent school movement, so that explains the Catholic component. We also have a large group of Christian schools, from the Society of Christian Schools, who belong to our group. We have many individual schools. There are Mennonnite schools, the Mennonnite Institution in British Columbia belongs to our local federation. There are Jewish schools, there are-what else is there, Garry?
Mr. Garry Duthler (Director, Federation of Independent Schools in Canada): We have Montessori schools, Waldorf schools, a Jewish school I think you mentioned.
Mrs. Boucher: I mentioned those, yes.
Mr. Duthler: Then there are also the Seven Day Adventists which also belong to our organization. I am sure we have left some out but there are a large number of schools that represent various special interests, for instance, there are schools for children with learning disabilities as well as a number of bilingual schools.
Mr. Irwin: Like most people I think on both sides of this table, we support the concept of separate schools, for want of a better word. I never did like that word of “separate” schools even when I was a trustee, but in the BNA Act, Section 93, the division is almost along religious lines. The concept in Section 93(3) and in the concept that you bring forward, I find very intriguing and very interesting where you talk about the cultural and philosophical differences. Are we talking about for instance the Montessori as a philosophical difference that one should have the right to implement with public funds? Would you mind commenting on that?
Mrs. Boucher: Mr. Duthler, would you like to?
Mr. Duthler: Yes. There are of course many different views of education that go far beyond religious differences. Those have always been present except that very often they have been adopted by one religious group or another. Yet over the last I 00 years we have seen a divergence of educational philosophies. Just to take a very common one that you find within most of the public school systems in much of Canada, you will find a strong influence of gentlemen like Mr. Dewey whose interest is not just in methodology but in philosophy of education and his philosophy of education has been adopted in many schools.
Also the Montessori school system for instance is not just a methodology of schools, of education, pedagogy, but it is also a matter of philosophy. These schools answer basic questions, what is a child, what does a child need, that will a child be when he or she grows up, and these schools address those questions and provide their education accordingly.
It is interesting in that connection that Section 2 in the proposed constitution in the Charter of Rights, says:
2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion;
Is usually accepted. People tend to understand what that means but when we talk about freedom of thought, belief, opinion, expression there we are talking about the bases of cultural differences quite often. These are things that are, in many cases, deeply rooted, sometimes based on religious ideas, but at least based on philosophical ideas. These kinds of things are transmitted in education and parents are aware that the only way that they can transmit those things is through the educational process.
What is often misunderstood in that connection, if I may be so bold as to say, is that people forget that education is more than schooling. In school you do not just teach the three Rs, but you teach a way of looking at life, a way of living, and that is what we are concerned with in a variety of schools.
Mr. Irwin: You mentioned at page 4 in an expanded Section 23 which you want, the words “culture, religion or philosophy”. Specifically the word “culture” and following what you have indicated, does this mean as some groups have suggested that we should have for instance entire schooling systems at the primary and secondary levels in German or Polish or Italian or Austrian or any number of languages, or does this mean as a right they should be able-I assume where numbers warrant-to have a certain amount of their schooling in these specific languages in certain areas of the country?
Mrs. Boucher: Mr. Chairman and members, we would envisage either of the official languages as being the language of instruction but the opportunity would be present for the teaching of another language according to the ethnic group being served as a second language. This was our intention.
Mr. Irwin: My time has run out. I just want to thank you for coming this long distance and the tolerance that you have shown in the last line of the second paragraph on page 3 where you say:
We applaud this extension of language rights because as a Federation we are committed to the advocacy of freedom of choice in education.
It is much appreciated and I assure you that many of the things that you say we agree with. The difficulty will be in the drafting, but in our hearts we know you are right and we support that concept of Canada.
Mrs. Boucher: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin.
Mr. Hawkes: Thank you very much and welcome.
I am from Calgary, Alberta, and I take some pride in the progress made in our public education and support for schools built on a great deal of differences.
It is consistent with my own sense of political philosophy and the reason I am a Conservative.
But I believe we do have a respect in trying to support individual differences. My anguish at large parts of this exercise that we are engaged in is that probably the consequence of the word is that it will make it more difficult in our society to respect those individual differences and to support them.
Your brief speaks to one part of that, as it comes to the issue of public funds for education. Without the provisions you have urged us to adopt, it clearly is then possible for a succession of courts to give us a situation where all of our schools in some essential elements would be operated in the same way.
I think you have come right to the heart of the matter that the values and the pedagogy reside in people called teachers, and if all of our schools are supposed to give equal opportunity of employment to teachers regardless of their pedagogy, regardless of their religion, regardless of their values, then in essence we are compelling a school system on this nation which will not allow parents to exercise any sense of freedom of choice about the education of their children. I see a lot of nods, but maybe for the public record you could say whether or not you agree with that?
Mr. Duthler: Yes, it is tremendously important for us to understand that when we talk about diversity in society there is a real privilege we have in a democratic society to hold different opinions.
Now that does not mean to say that mine is better than yours, except perhaps for my ow11 estimation; but I can respect you more if I am allowed the freedom to express myself, and I can also extend that freedom to you.
Now, also, for a teacher, no teacher just teaches the textbooks; every teacher teaches children to live, whether they are teaching mathematics or not, and they are transmitting values. The right to do that and the right for parents to choose what values the children ought to be receiving is very fundamental, in my view.
Mr. Hawkes: Can you tell me why your membership stops at the eastern edge of Quebec. We are missing four Atlantic provinces. Can you tell me why they do not belong?
Mrs. Boucher: Our organization as a national group is not yet one year old.
We are making efforts to include the Quebec independent schools and those further East. I hope before very long we will be truly national, including every province.
Mr. Hawkes: Your statement applies to the six provinces. You make some very strong stat6ments here that this constitution act of 1980 will intrude in the provincial jurisdiction in education in some very major, massive ways. It will take away, because of its pre-eminence, some rights you now enjoy in at least those six provinces.
Do you have any knowledge of the other four? Do you feel the same way about the other four, that this Charter will take
rights away from schools which are now enjoyed under provincial legislation?
Mrs. Boucher: For one thing, the Premier of Newfoundland has made this statement with regard to the denominational system in that province, and we would tend to agree that there is a possibility that those rights could be eroded, unless some of the amendments we are proposing are included, or that this matter will be looked after in a way suggested by the Catholic school trustees.
Mr. Hawkes: Our first witness this morning was asked a question by Mr. McGrath, who is not with us at this moment. I think it should be asked of you. He brought up Section 2 of the Charter of Rights and in particular the freedom of religion clause. He asked for an opinion from the witnesses as to whether or not they felt that the charitable tax status which applies to many religious activities, including some schools, would be at risk if we entrenched as pre-eminent law in this country the freedom of religion, and in the following context, that freedom of religion would imply that people are free to be not religious, or free to be religious.
Our present social contract that has evolved through Parliament is that we provide financial support to religious purposes, including schools through the use of the tax system. We bias the tax system in favour of groups which we say are important to our society.
Mr. McGrath says that if there is some possibility that that would be viewed as discriminatory, therefore illegal in the tax system, and therefore the possibility would exist that at least some of your funding base would disappear if in fact Section 2 was entrenched in the constitution of Canada.
Mrs. Boucher: Well, Mr. Chairman and members, we have not gone into this matter. It had not occurred to us that this would impinge in any way on the present tax status.
If you are speaking about income tax receipts for charitable donations, these are available, not only to religious groups, but also to nonprofit organizations of different types. So I do not think it would be applicable. I say that just off the top of my head.
Mr. Whelan: I was just thinking that political contributions are deductible, and you would have to move in that area first.
Mr. Hawkes: The Charter does not contain at this point a section on political affiliation or persuasion, but it does clearly say that we should not discriminate on the basis of religion, and that religious freedoms are important, and if, in fact, a portion of the tax system is discriminating on the basis of religious affiliation, then it is possible for a legal argument to be made that that is discriminatory against the Charter.
Obviously, we cannot get an answer today, but I would suggest to you that it might be worth examining and if you do reach an opinion through some of your volunteers or people who are knowledgeable about law, it might be wise to communicate that back to us prior to our final determination as to what goes forward.
Mr. Duthler: If I may add a personal opinion on that, I think that people have died for religious freedom. I think the
right to have religious freedom is important enough that the concept of religious freedom certainly supersedes the concept of tax savings.
If there is concern in this land that religious freedoms as well as others are being eroded or that there is a possibility that they would be, certainly the rectification of that is more important than the tax savings which may or may not accrue.
I think there is a principle involved here about justice which is more important than the tax savings.
I also realize, on the other hand, that perhaps the removal of the charitable status may in itself endanger a religious freedom. What has to be established, though, is that the principle of religious freedom is primary.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes. r think your point has been well noted py our witnesses and members of this Committee. It is a fundamental one.
Now, Mr. Corbin followed by Mr. Kilgour.
I would like to remind the honourable gentlemen that the House is sitting at 2 o’clock and we still have the right at least to eat a sandwich before going there.
Mr. Corbin: Thank you very much, Mr. Chairman. I thank the Lord for a good stomach.
I would like to welcome our witnesses this morning. I should like to inform them that I am from New Brunswick and I am familiar with one of the private schools mentioned in the appendix to your brief.
I have two or perhaps three questions to put to you.
I am not a lawyer, and I used to be a journalist: that is quite incompatible with my present profession. Therefore I say this with some reservation. It seems to me that in your proposed amendment or suggestion that we copy the British Columbia Human Rights Code, where there is reference, among other things, to fraternal philanthropic and other organizations, I just question the possibility that you would be opening the door very wide to groups such as the KKK, and I wonder if you have reflected on the possibility and what that would do in terms of enshrining in the constitutional pattern groups such as the KKK who discriminate on some other very fundamental principles.
Therefore, I question the wisdom of going the way the British Columbia Human Rights Act has gone, in these terms. Have you any comments to make?
Mr. Whelan: Mr. Corbin, do we have any legislation at present to stop the KKK? From what we read in the newspapers we do not. Maybe someone can inform me on that.
Mr. Duthler: In that connection, I would like to say that I hope that the Parliament of this country will never legislate against the existence of such an organization like the KKK, even though personally I find their aims and the whole organization a horrible thing; yet, I would say that it is the right of
every person to believe as he wishes and to associate with others who believe the same thing.
The task of the Parliament of Canada is to make such legislation as will prevent such organizations, not from thinking what they do, but from acting out their thoughts where they become detrimental to the interest of the nation.
This amendment that we propose here speaks exactly to that issue. It proposes that any organization should exist according to its commitments, but allows the government to legislate against its actions which may endanger other Canadians or the rights of other Canadians.
Mr. Corbin: I, of course, did qualify my point by saying that I did not have any legal background and I understand that there are some interpretations which could be given in relation to the KKK. They come under the umbrella of the Criminal Code, to answer your question. That is my understanding.
Now, I would like to go on with respect to minority rights on page 3.
It seems to me that a school’s philisophical, religious orientation- and that is a valid consideration, I believe there is no doubt-but if it is to be a basci consideration, as you say, then language is also intrinsically a basic consideration, because after all, language is the vehicle of culture.
To tag onto that you reference that citizens of Canada of either official language should have the right to have their children educated in schools or institutions of their culture, religion or philosophy of their choice, or where the number of such children warrent to have provision out of pubic funds for such education, I wonder why you have not carried that reasoning beyond those words to also suggest or recommend as well as have other groups who have come before us in recent weeks, such as the Positive Action Committee, for example, that French and English speaking provincialminority groups have the right to administer their own educational institutions under the over-all jurisdiction, of course, of a provincial authority.
Have you any comment in that respect?
Mrs. Boucher: I would presume that the administration would be included.
Mr. Corbin: But you do not say so.
Mrs. Boucher: No.
Mr. Corbin: But you would be prepared to say so?
Mrs. Boucher: Yes.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Corbin.
Mr. Kilgour, a short question.
Mr. Kilgour: I welcome you, members of the group.
Your proposed change in secton 23 does use the term “culture or religion or philosophy”.
I think I would basically support you other than the words “or philosophy”. Perhaps you are merely repeating what you have just said to Mr. Corbin, that if the philosophy of the group was however bizarre or antidemocratic as you may care to think of, do you think that such a group should be permitted
to set up a school? Take, for instance, the Marxist-Leninist school, do you think they should be able to have provision out of public funds for their students if their numbers warrant?
Mrs. Boucher: Well, I would perhaps refer you to the Independent Schools Support Act which has recently been adopted whereby the provincial government does give a certain amount of funding to independent schools in that province.
But one of the provisions is that they do ot advocate religious intolerance or violent overthrow of the government. Therefore, this would be part of the provincial regulation.
Mr. Kilgour: One of the things that most of us find so objectionable about this package, is that it hits minorities, whether regional groups, provinces or groups of citizens other than anglophones or francophone citizens, and treats them in many ways in a very harmful manner. I cite to you the case of Manitoba-and you are not from Manitoba, and you may therefore not recall that there was a demagogue by the name of Dalton McCarthy who came out in 1888 and said: either this country will be English or French and he lighted a fire which in two years resulted in the Manitoba School Act of 1890, which as Mr. Bockstael knows, ultimately led to the loss of francophone rights and the elimination of the Catholic school system in Manitoba.
Would you care to say whether or not you think this amendment formula in Section 42, which you may not have in front of you, which I think is tailor-made for a demagogue who wants to crush minority groups of all kinds, tailor-made for such a person to eliminate all kinds of rights of any provision in the constitution if he is sufficiently persuasive, with public funds, I would suggest, to win a referendum which takes away any minority group’s rights in the constitution?
Mrs. Boucher: We are aware that it might be possible in the future through a referendum for the majority of citizens to eliminate the rights of minority citizens.
Mr. Kilgour: Do you have a position on that, or would you not express your position?
Mr. Duthler: What we have to realize is that, regardless of the kind of legislation produced at any time, that danger always exists. To a certain extent we have to operate on the basis that the people of Canada are able and will be able to, with the legislation, to be warned against those dangers and to recognize them when they arise.
No constitution and no document can prevent people from being influenced by demagogues from changing whatever has been changed before.
Mr. Kilgour: So would you not agree that the American constitution which prevents any constitutional change, except by going through all the state legislatures or a majority of two-thirds of them, that builds in the protection which this kind of proposal in Section 42 excludes?
Mr. Duthler: I think I will bow out, because you are asking me a question which is beyond my competence to answer.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Kilgour.
The honourable Bryce Mackasey to conclude.
Mr. Mackasey: I do not want to introduce a political note by suggesting that it is also beyond Mr. Kilgour’s competence. Virtually every minority group which has been here has endorsed the concept of a Bill of Rights. I have to express my satisfaction at your appearance. I have a daughter in one of the independent schools which is affiliated with your movement in Montreal; I think we need independent schools in this country for the future.
In view of the time, I would like as briefly as possible to point out that you have expressed quite legitimately a concern that the federal government may intrude in the provincial jurisdiction in the field of education with all the conflict that creates. I share that concern.
I move to Section 23 and I point out that Section 23-let me put it another way. I endorse your concept of freedom of choice.
Unfortunately, freedom of choice under the legislation of the Province of Quebec was denied the people of Quebec for reasons which made sense to the majority of the citizens, since if it did not, they would defeat the government or demand a change. It is their respect for that provincial desire that Section 23 is written as it is; so that if you are a minority in one province and you go to another, or the majority in one province and you are educated in English and you go to Quebec, you can carry on. On the contrary, if we went for freedom of choice that would be considered by the Province of Quebec as a flagrant intrusion in their rights.
On the other hand, I am such an advocate of freedom of choice, that if Mr. Kilgour were to come forward with that type of amendment I might find myself persuaded to support it, but I doubt that he will bring it forward.
Mrs. Boucher: Mr. Chairman, Mr. Mackasey, I think perhaps some of the members are reading into our brief something which was not intended to be there. We did say that we felt that the federal jurisdiction was being extended, but we did not express an opinion as to whether that was good or bad. It is a fact of life and something we have to live with.
We feel that, certainly, the federal government has a responsibility to the citizens of all provinces to protect their freedom of choice.
Mr. Mackasey: Thank you very much: there is nothing that prevents the provinces from going beyond the Charter, however.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. Mrs. Boucher, Mr. Whelan, Mr. Duthler, on behalf of honourable members of this Committee, I would like to thank you and apologize, again, for the late hour of sitting. I am quite sure that you have realized from the questions that have been put to you, that even though it is late, there has been interest shown in the matters you have raised, and the questions are very fundamental and will be given full consideration by all honourable members of this Committee.
Thank you very much.
Mrs. Boucher: Thank you very much, and we do appreciate your attention in spite of the hour and I am sure you are anxious to have a few minutes before the sitting of the Parliament.
We thank you again.
The Joint Chairman (Mr. Joyal): Thank you very much.
The meeting is adjourned until 3.30 this afternoon when we will hear the spokesmen for the United Church of Canada.
The meting is adjourned.
The Joint Chairman (Senator Hays): I should like to call the meeting to order.
This afternoon we have the United Church of Canada here with us, represented by Mr. Clarke MacDonald, Reverend Robert Lindsey, and Reverend Guy Deschamps.
We are very pleased to have you here this afternoon and I understand that Mr. MacDonald will be making the opening remarks.
Mr. Clarke MacDonald (Senior Secretary, Office of Church in Society, United Church of Canada): Thank you very much, Mr. Chairman, honourable Senators and members of Parliament.
If it meets with your pleasure we would prefer not to read our brief to you but, rather, to summarize it after I have made some opening remarks and after Reverend Deschamps has spoken briefly to this group. Then I will turn to page 16 of the brief, which is the summary, and make some comments on that following Reverend Deschamps remarks.
I would like to thank you for this opportunity, Mr. Chairman, to appear and to address you on this important subject. You have already welcomed my colleagues, Reverend Lindsey and Reverend Deschamps. We recognize that this could be a watershed in Canadian history and we are pleased that the United Church of Canada, through our presence and our presentation, may make some positive contribution to this debate.
We are here at the direct request of the Unit of Social Issues and Justice of our church which is the group responsible for leadership in social, political and moral issues.
What is written reflects the official position of either the General Council, which is the highest court of our church, or one of its policy-making bodies. The Executive of the General Council last month approved and endorsed our intention and purpose in being with you today.
The summary page of our brief reflects the areas of concern which we have in the United Church, but one further word before I call on Reverend Deschamps.
We assume that there is no need in the presence of this group to make an extended apoligia for the involvement of the church in this issue or in its wide-ranging implications.
The God of Israel, the same God we believe who declared himself in Jesus of Nazareth, was and is the God of the nations. God is the God who acts in history and whose ways are known in the interventions of divine power in the affairs of men, women and nations.
Ever since, through Moses, God addressed the oppressor and said: Let my people go; or through Amos and other prophets he inveighed against those who ground the faces of the poor; or through Jesus he said that the imprisoned, the stranger and the poor were the particular objects of his concern; or through the apostle, Saint Paul, he said that God does not disciminate against persons.
Ever since that time we hold that the church, when it is true to its mandate, has also upheld the things which we declare in the brief which we are presenting to you today.
Now, before we move to a summary of that brief, I would ask you to call on Reverend Deschamps, please.
The Joint Chairman (Senator Hays): Reverend Deschamps.
The Reverend Father Guy Deschamps (English-French Relations Officer, United Church of Canada): Thank you. I would first like to express my appreciation at having this opportunity to say a few words to the Committee on behalf of the United Church of Canada.
You may wonder why the church is interested in matters related to the constitution of Canada and the answer is quite simple.
The United Church of Canada is proud to call itself a national church. Its congregation includes native people, francophones, anglophones, and while our francophone component is quite small, about 20 parishes and some 10 pastors, we would like you to be aware of it.
The United Church has spoken out a number of times on subjects like the one we are dealing with today. In the sixties, it presented a brief to the Commission on Bilingualism and Biculturalism. Through its synods and executive committee the United Church took a stand on Quebec’s right to self-determination and well before the referendum in Quebec, the United Church supported a statement which is liberally quoted in the brief you have before you. After the referendum, the United Church once again made its position clear in a statement which I will quote in a few minutes.
It is not by chance that we are here, but as proof that the United Church is deeply concerned about the future of this country and about they way in which we will go about building that future.
I would like to end by quoting a post-referendum statement that was recently accepted by the General Synod of the United Church:
The future requires tha1t we actively participate in building the society of the future and in determining the type of society we want and the way in which changes will be made. The various groups and sectors of society will have to participate in discussions and the majority will have to recognize the aspirations of minorities and their need to participate. Since the division of power and resources
must be adequate, we must counter any attempt to manipulate the process for political or economic gain. Any attempt at manipulation which violates the right of any minority to develop should be considered as a form of violence. Unilateral action with a view to solving problems without adequate participation would only provide more proof of the attitude which minorities have always fought against.
And I will end by quoting this statement:
The Church has not yet taken a political stand. It prefers to raise various questions concerning the values and princi pies of justice which it considers important to this debate, while encouraging its members to act according to their conscience.
That is the end of my quote and my presentation. Thank you very much.
The Joint Chairman (Senator Hays):Thank you.
Mr. MacDonald: Mr. Chairman, the summary page indicates the main tenets of the proposal which the United Church is presenting today. I would first of all call your attention to thi.! statement of the Executive of the General Council which was made last month.
Communication was engaged in with yourself and the Joint Chairman, the Prime Minister and Mr. Clark and Mr. Broadbent, indicating that the Executive of the General Council of the United Church felt that if the constitution is to reflect the aspirations of both majorities and minorities within the country, then a less hurried process than was then envisaged would be needed and the participation of more groups must be encouraged.
We, therefore, welcome the fact that there has been an extension in the time for the sitting of this Commitee. This position, incidentally, was supported quite on their own by two United Church groups in the Conference of Alberta and the Conference of Manitoba.
The second part of our summary deals with aboriginal rights, native peoples’ rights, and I would like to say that this is, if there is something that is more important than anything eise to us, it is probably this section of our brief. I do not mean to downgrade anything else, but certainly to highlight this one.
We express our concern about the weakness inherent in the references to native people in the draft of the constitution proposals. The sole reference in Section 24 is referred to on page 5 of our brief and I will just read this paragraph:
We have been appalled at the willingness of companies, governments, and indeed of many Canadians, to simply put aside the question of negotiations between aboriginal nations in the rush for the resources of the North. At this point the rights of the aboriginal nations within Canada are supposed to be guaranteed by the Crown. If aboriginal right~ can be brushed aside under present conditions, what assurance can we possibly draw from the brief reference in Section 24 of the Canada Act?
In fact, Section 24 is so weak that it calls into question our claim that we will bargain in good faith with the representa-
tives of aboriginal nations once the constitution has been patriated. Our fear is that once the Canada Act becomes law, the status quo rights of native peoples, that is the reduced rights with no recognition of aboriginal nationhood, will be virtually guaranteed.
The postpatriated time for engaging in this we believe is too late and this matter ought to be dealt with prior to patriation taking place.
I have said personally on previous occasions and will repeat here that if the churches, which together in a coalition have supported the native people in their claims, if they should default on their commitment to Canada’s native people then I would not expect oppressed people anywhere in the world to trust the church again for 200 years. It is so serious that the churches maintain their commitment in this regard.
Secondly, we call upon the Charter of Rights and Freedoms to include sections on the rights of refugees and immigrants and inmates of.penal and mental institutions, the rights of the physically and mentally disabled should also be stated, and discrimination on the basis of sexual orientation prohibited.
In regard to two of those matters, the churches again in a coalition have been for some years now supporting the Council on Justice and Corrections, which is a group well-recognized by the justice area of the Government of Canada. We have been participants with many other groups in the matter of refugees from South-East Asia, some 600 families have been sponsored through the aegis of the United Church since July of last year. This means that since there was necessarily a guarantee of the equivalent in cash or kind of $12,000 per family, that the church has raised something in the nature of $7.45 million in this particular project.
So that we are not just talking about something in which we have not been involved at this point.
We also refer in our brief to the matter of equalization which needs to be clearly identified as having to do with minimum standards for people, for Canadian citizens, minimum standards of housing, of nutrition, of income and of services, and I might throw in here the news this morning of the, again, increase in the cost of living in Canada to the record point that it is at present; this is disturbing news in regard to these things.
Finally, we affirm that a Charter of Rights and Freedoms cannot serve its intended purpose unless it includes a section on the right of workers to join unions and to take collective economic action. The right to collective bargaining has been a position of the United Church since about the mid 1940s and was reaffirmed on a number of occasions as late as the early part of the past decade.
So, Mr. Chairman, those are the main points which are advanced in our brief. I would like to request, if it is possible, that the entire brief appear in the records of this Committee and we will not go into it in more detail from quotations and readings of it except in response to questions if you wish to engage in dialogue at this point.
The Joint Chairman (Senator Hays): Thank you very much. We will see that it is in the proceedings.
I now go to Mr. Epp, followed by Mr. Ogle.
Mr. Epp: Thank you, Mr. Chairman.
I want to thank the representatives of the United Church of Canada for appearing here and outlining their brief to members of the Committee. It goes without saying, sir, that your church has been standing in the forefront of social issues and social causes and trying to project to the general public of Canada that our role is not only a secular role but also has a role as we exercise our responsibilities to our fellow man, and your brief again is an indication of that.
You have raised a point that I do not think has been before the Committee and I intend to take most of my time, Mr. Chairman, on the point that you made in your introductory remarks, sir.
You mentioned at that point that the God of the Bible, the God of the Old Testament, and his Revelation in the New Testament through His Son, that that sovereignty which is recognized by the United Church of Canada, that that sovereignty is also or should be recognized in the state. The Canadian Bill of Rights, a copy of which I have before me, which was introduced for debate or received debate on July I, 1960, and was assented to on August 10 of the same year, opens with the following words:
The Parliament of Canada, affirming that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person, and the position of the family in a society of free men and free institutions …
And then continues, of course, what is most commonly known to Canadians is the closing statement: “I am a free Canadian.”
Additionally, other people have written to individual members of the Committee arguing that there should be a preamble, and that in the preamble the sovereignty of God over humanity must be recognized. I take it from your comments, is that the position of your church as well?
Mr. MacDonald: Would you just repeat the least phrase again, about the sovereignty of God should be over the nation?
Mr. Epp: Over the nation, and the nation is obviously composed of people.
Mr. MacDonald: Yes. The church has not made a specific statement to that effect. It has acknowledged the sovereignty of God as supreme ruler of the universe and the implication in my mind would be that in the mind of the church He ought to be and is the Sovereign ultimately of the nation. We cannot but affirm the fact that we live in a very highly pluralistic society. That does not mean that we acceed to the opinions of some aspects of that pluralism but we must admit the rights of those people within that pluralism if they wish to deny this.
Mr. Epp: I am not talking at this stage about rights, sir. If we accept the sovereignty of God and that the universe is a creation of God ·then surely people being then His creation as
part of that universe, are you saying to me then that the constitution of Canada, as one of the fundamental principles on which the nation is based, should recognize that fact.
Mr. MacDonald: I would as an individual churchman and leader within my own church affirm that. The church has not made a declaration to that effect, to my knowledge.
Mr. Epp: Thank you for that answer. Could I then get into the point that has been of some concern to me in this Committee, and that is at the present time in the constitution, quite apart from the Charter, be it valid or not, I am not discussing that at this point, that the excercise before us in fact creates a dichotomy for us that on the one hand we want to protect rights, and I think that is the general view of every member around this table, it is not the matter of rights, it is the matter of how best do we protect them, that is the issue that confronts us. But in so doing, how do we not only, as we protect the individual rights, also protect group rights which are fundamental to the operation of the church.
Mr. MacDonald: I would want to answer that by way of illustration. Three weeks ago I attended a service in Bloor Street United Church in Toronto. It had to do with the issue of peace and war and it was attended by and participated in by the Jewish community, the Moslem community, the Sikh community, Budhist, Hindu and Christian and I see no contradiction between affirming the Sovereignty of God on the one hand and the rights of people on the other and rights of groups of people providing that any assertion of their rights these people are at the same time respecting the human dignity of other persons.
Mr. Epp: Theoretically I have no difficulty with your answer. Pragmatically, I want to explore that a little further, though.
For example, we have had before us other church bodies who for instance have made the point that while they support the position that you have just enunciated in terms of the validity of the protection of rights of the individual, they also want the right that in their function as a corporate body, a corporate body whose tenets of faith are based on certain principles as they see them best for themselves, that they should also have the right to function in that corporate structure and have the right, for example, to determine who will be their teachers in that structure even though that might on the other hand to be a violation of an individual right. Example: if you want an example of a private school, that is a school based on certain religious beliefs, a teacher having a certain life style which is contrary to the teachings of that church, under the Bill of Rights that life style might be protected. Can that church still have the power in fact to dismiss that person and is that then discrimination or a violation of the Charter of Individual Rights.
Mr. MacDonald: I am going to ask Reverend Lindsey to comment on that question.
Reverend Robert Lindsey (Associate Secretary, Division of Mission in Canada): I think that, as we say somewhere in our brief Mr. Chairman, all rights are set in the context of other rights. I think that this one is a very sensitive and delicate
area. You could take the example outside the area of religion altogether and find it affects just about every form of right, freedom of speech, freedom of collective bargaining. It comes up every day. I think it was Chief Justice Holmes that once said that the right of my elbow ends at the edge of your ribs.
We do not have a statement on this particular situation which has arisen in a number of parts of Canada and has just come up in London, Ontario or Kitchener, Ontario around the question of a divorcee teaching in a Catholic shcool and being discharged because that was contrary to the teaching of the church.
I guess the bias that you would discover in the United Church of Canada, and you would discover it in our own offices in Toronto, would be on the side of individual human rights in this situation. I was employed in our offices for about two months before I realized that my secretary was Jewish. On the floor that I worked on we also have Hindus. Although we are the United Church of Canada we employ a number of Anglicans and Roman Catholics and similarly those churches employ people in rather high positions who happen to be United Church people, so as I understand our church, the weight of its feeling why we want to preserve our religio-social identity and we have some concern about that, we put the question of individual rights first. I do not know what more to say.
Mr. Epp: Thank you, Mr. Chairman.
I know that is a difficult topic and I am not trying to be disrespectful. I simply say to you, sir, that while you might have private accommodation in your own corporate organization that does not necessarily apply universally to other situations or other church bodies, and I am not trying to be negative when I make that comment.
The last point, and I do not have time to pursue it, but I would like to have your reaction, to the Immigration Act of 1976 less to what I thought were fundamental changes other than administrative in terms of immigration policy. One was it had a statement of purpose, a statement of what function immigration was to have in Canada. Secondly, it finally put in a more, while not satisfactorily possibly, totally, it put in a section on refugees.
I have always been under the opinion that while a sovereign country and also a member of the larger global community has a responsibility towards its fellow man outside of the national boundaries of the country, that it is still the sovereignty of the country, the possibility of that country to determine who should enter that country whether as a refugee or an immigrant; but we are confining ourselves to refugees at this stage, yet when I read you brief I come away with the gist that you make that in fact a refugee should have the right to, I imagine, declare himself or herself a refugee either under the International Conventions of the United Nations, or that could even be extended further, that for example, for economic reasons, a person could declare himself or herself a refugee. That has in fact come up earlier.
Are you saying that the sovereignty of a nation does not extend so far that it could determine through its own legisla-
tion who should have the right to enter the country and that in fact a charter would supersede even that authority of the state.
Mr. MacDonald: Mr. Chairman, the policy and carrying out of the policy regarding refugees is in Reverend Lindsey’s portfolio, so again I am going to ask him to comment.
Reverend Lindsey: I think it has to be recognized and it is recognized on the floor of. the House of Commons every night that we are a part of a big world. Certainly justice is one and indivisible. I think basically why entrench a Charter of Human Rights?
Why have any human rights? It is because we have humans who have rights as we have recognized it. Why then limit it to those who have full and intact citizenship? That somehow waters down the whole humanitarian thrust of the intention but we are a signatory and I do not want to pose here as any kind of authority or expert because I am not but simply we are signatory to the United Nations Declaration on Human Rights, the Universal Declaration, and that is very much a part of that Declaration, and Article 14 in the Universal Declaration of Human Rights says everyone has the right to seek and enjoy in other countries asylum from persecution, be are talking about asylum as somehow separate from immigration. We are talking about a place of refuge. We are talking about a place where primarily when …
Mr. Epp: Excuse me, you were talking about a place of first refuge as known in the immigration law as opposed to a permanent status?
Rev. Lindsey: No, we are not talking about permanent status here. We are talking about getting shelter or refuge when you are running for your life, when you are scattering out of some Central American republic and you need to find a place where you are not going to get a bullet through your head, that this country, if it is a humanitarian country, somehow make that a right, and honour that part of the UN code.
Mr. Epp: Would you extend that as far as economic rights, due to poverty?
Rev. Lindsey: I would like to but you know very well there are two or three billion out there who are poor, so that is a bit of a counsel of perfection. I am sure if we were to be in the position to be a fully humane and fully just country in a fully humane world maybe we would, but at this point we are talking about the policital refugee.
The Joint Chairman (Senator Hays): Thank you, Mr. Epp. Mr. MacDonald.
Mr. MacDonald: In this connection, Mr. Chairman, I would like to say that the United Church along with other churches in a coalition made representations to the government at the time the Immigration Act was rewritten and made recommendations in regard to refugees which the act did not accommodate.
The Joint Chairman (Senator Hays): Thank you. Mr. Ogle, followed by Madam Campbell.
Mr. Ogle: Thank you, Mr. Chairman, and welcome, gentlemen, to this table today. To begin with I would like to say that I very much agree with the general principles that you have
enunciated in your brief and I felt verty comfortable with them all. There was one area in which I personally-and this is my own personal position, it was the question of the human rights extending from the moment of conception until natural death and I realize in your own church that that has been a delicate and difficult question to handle as well and I will not bring it up as a question but in general; and I see that the brief does not have anything related to the question of when human life or when rights begin, although I think the morality of that question is one that is facing this Committee at a very profound level because of the information that has come from both sides on the question.
I was happy to see in the brief the strong presentation for protecting the rights of minorities. I think the majority is always able pretty well to look after itself. It is the minority that has to have the care and the questions that Mr. Epp asked previously were excellent questions, I felt, relating to this question of minority.
There is a question that I would like to ask you about in relationship to the resolution because as far as I know in the brief you have not mentioned it and it has got to do with the rights of everybody when it comes to, under Section 8.
8. Everyone has the right no to be subjected to search or seizure except on grounds, and in accorance with procedures, established by law.
My own personal experience, having lived in totalitarian countries for a period of life, I realize that that particular kind of law or whatever we want to call it in its what I think flimsy position there, could in a sense take away most rights from everybody; and I notice in your brief you did not relate to that. I wonder if you have something to say about that particular section.
Mr. MacDonald: Thank you, Mr. Ogle. Just a comment in regard to the question you did not ask about abortion, the commission members might want to read, I am sure you have lots to read, but you might want to read the report of the Commission on Abortion which studied this subject over a period of eight years and reported to the last general council of the United Church and if you want a copy personally I can see that you get one. Anyone who does can have one.
Regarding the question in reference to Section 8, I am glad this was raised because this is of concern to us even though it was not raised in the brief and it was of particular concern to one of the conferences of the church which has communicated with this Commission in writing and sent a copy to ourselves. We also feel, as Mr. Ogle has implied in his remarks, that this section is inadequate as indeed the very first section we feel to be inadequate which guarantees the rights and freedoms set out in it, subject only to such reasonable limits as are generally accepted in a free and democratic society with parliamentary system of government.
A free and democratic society with a parliamentary system of government can still do things that are not right, things that are not protecting the interests and well-being of citizens, not protecting their rights. This is in fact less than is stated by the
Article 12 of the Universal Declaration of Human Rights of the United Nations where it says:
No one shall be subjected to arbitrary interference with his privacy, family home or correspondence nor to tax upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
That, it seems to us, goes beyond Section 8 of the proposed act.
We recognize in hindsight how a country allegedly civilized, allegedly free, allegedly operating on a strong parliamentary basis could nevertheless uproot hundreds of its citizens in British Columbia during the war and transport them to other parts of Canada, and that was done in a democratic society, a free society. There are other illustrations which Reverend Deschamps might want to refer to with regard to the War Measures Act but, yes, we are concerned about this Section, I would support the implications of your remarks.
Mr. Ogle: Thank you very much. In your remarks you made what I consider to be a kind of shocking statement when you said that unless this constitution reflected the protection of aboriginal rights that it would be 200 years, am I correct in the context there, 200 years before, in a sense, we would live that down.
Mr. MacDonald: Sorry, you just moved, in repeating my remark, from unless the constitution did it. I said that the churches are engaged in a coalition in support of NAPO’s peoples rights and if the churches reneged on their commitments then I would not expect people to trust the churches.
Mr. Ogle: I am sorry I misquoted you.
Mr. MacDonald: That is all right.
Mr. Ogle: The basic thing I heard you say is that this is of the highest moral-the ethic involved in that is at the very highest level, that it is the most important thing.
Mr. MacDonald: Again I said that I was repeating a statement which I have personally made in regard to that issue. It is not contained in our brief. I was simply trying to underline the emphasis that the brief makes. I am still committed to that myself and representatives of other churches who have spoken on the same issue have made similar comments.
Mr. Ogle: Thank you very much. I would like to change just a slight bit. Our party is proposing an amendment, changing the bilingual structure of Canada, to the extent that a commitment will be given in the language rights to Ontario, New Brunswick and Manitoba. Could I have your response to that kind of amendment?
Mr. MacDonald: I would ask Reverend Deschamps to respond to your question if he will, please.
The Reverend Deschamps: I do not know whether I ,can answer on behalf of the United Church of Canada, but I can give you my personal opinion. As far as I know the church has no official position on this, although the Executive Committee of the General Synod did state that the rights of Francophones outside Quebec and Anglophones in Quebec should be respected, whatever the political structures. The right to use and
perpetuate a language should be protected where one or the other of the two language groups represents an appreciable proportion of the local population. That is what the United Church said.
To put it ecclesiastical, I would personally say, Alleluia! To anything that contributes to the respect of the human being.
Mr. Mackasey: It is bilingual!
The Reverend Deschamps: Yes, Mr. Mackasey.
Mr. Ogle: In the context of the planet today and I appreciate the social questions have been treated in the United Church as they relate to international life and responsibilities; but do you have any thoughts about including in the preamble something that would indicate that today a constitution has to be in a sense much bigger than just a national constitution?
Mr. MacDonald: Well, this is not a subject to which the United Church has addressed itself in connection with the constitution. But it is a subject which the Church is addressing everyday in connection with its responsibilities as part of the global community.
Im am sure we would welcome an inclusion in the constitution of something which put us as part of the planetary family. We know, beyond a shadow of doubt now, that in the kind of interdependent society in which we live, internationally speaking that we are all bound together in a bundle of life on a very fragile planet, and that we have responsibilities to one another, regardless of national boundaries. So, briefly, the answer is yes, we would welcome that.
The Joint Chairman (Senator Hays): Thank you very much.
Miss Campbell followed by Senator Phillips.
Miss Campbell: Thank you, Mr. Chairman, I, too, would like to congratulate the witnesses here today on behalf of the United Church of Canada.
I am pleased to meet with Reverend Lindsey again, having taken part in a conference with hirr. on social goals for Canadian life as well.
There is something in your comments which suggests that you would like us to delay. Is the extension to February 6 long enough to hear enough witnesses from across Canada, or was the delay you are talking about in order to get more agreement between the provinces and the federal government.
Mr. MacDonald: At the time the resolution passed the executive general council regarding a less hurried process, it was then the ninth of December; that is why I said we welcomed this extension.
We have had no means of discovering the minds of the people in the United Church as to whether that time is sufficient.
We knew, when the resolution was passed, that there were comments made in the House of Commons that it might be extended to February. We were welcoming that possibility.
I am sure there are people in the United Church who want a longer time, because, if I remember correctly, the resolution referred to “Berger-Style Commission”. A Berger-Style Commission would certainly take longer than that.
Miss Campbell: I go to my next question. You are certainly in favour of an entrenched charter of rights and freedoms in Canada.
Mr. MacDonald: We are asking that the rights should include more than are included at the present. So the answer is yes.
Miss Campbell: You are asking us by implication to go further. You may not be aware of it, but you follow up on a group we had this morning the National Anti-Poverty Organization and the Public Interest Advocacy Centre. I am sure they would be very pleased to hear your brief this afternoon, because some of the same areas you have mentioned they are asking us to entrench as well.
You are probably aware of Section I. There has been a great deal of criticism that if you are trying to entrench a bill of rights, Section 1 leaves power with the legislature or Parliament to overcome the charter of rights and freedoms. In other words, the supremacy of Parliament is there over this proposal.
Do you feel the supremacy of Parliament should be there, or do you feel it should be so entrenched that, unless there was some national interest at stake no group could overcome this basic charter?
Mr. MacDonald: I want Mr. de Jong to comment on this in a minute but I would just give a personal reaction to it.
With all due respect to any person who is preson or absent, parliaments are made up of human beings; they are subject to error at times. Therefore while things could happen in a parliamentary act which would not be in the interests of the human rights of the citizens, we believe that so far as it is possible those human rights should be covered in the charter.
Now, of course, there should be extenuating circumstances which we acknowledge, living in the kind of uncertain, hazardous world in which we Jive. So we do acknowledge that. There would be circumstances which no one could predict. The parliament of the day would have to deal with those circumstances. But basically we would want to see them written in.
Miss Campbell: And not allowed to be tampered with?
Mr. MacDonald: Not allowed to be tampered with, by the whim of the government of the day.
The Reverend Deschamps: That just about covers it. It is always hard to speak for someone else and I am slightly uncomfortable because the church has not really taken a stand on this. I know that in our French-speaking congregation, opinions are very much divided, to say the least and perhaps the most.
Miss Campbell: My final question-and I would like, again, to go to your progressive role which you have always shown in Canadian life and in influencing government towards achieving these goals and in the sharing of the wealth as you have mentioned in your brief, for all Canadians.
I do not really want to deal with the native rights or aboriginal rights. There is a role for this Committee to be looking at those sections-and physical and mental handicapped, penal institutions.
But two areas I would like to come back to. There is the question of a guaranteed annual income. You are very familiar with that.
In your brief you speak a right to a basic standard of living and social security. You make one reference to with, that the United Church of Canada has supported the concept of a guaranteed annual income and other related income security measures.
If you are going to entrench in a constitution, how do you reach that level of entrenchment? What would be the fair words you would use. I am for a guaranteed annual income so I might put forward biased words as a suggestion. So what is your view?
Mr. MacDonald: Well you have indicated that you have met Mr. Lindsay in a previous incarnation and that was his incarnation, so I will ask him to deal with that.
Mr. Lindsey: Well, I guess that you have received many perspectives on all sides as to what a constitution or charter of rights is, even entrenched.
It is putting that before us towards which we must aim. It is an ideal. How does one enforce freedom of speech? You do not have eyes everywhere. You would be violating the freedom or harrassing a person’s privacy to find out if there is freedom of speech.
So all those things are in context.
In a federal state-and we are not in a unitary state-the relationship as to who is to see that this guarantee is observed, the question is: is it the province, is the federal government? Certainly, again, as a signatory to the United Nations Human Rights declaration, Article 25 you will recall that it states that everyone has the right to a standard of living adequate to their health, well being, clothing, housing, etcetera and minimum income etcetera.
I think when we see the erosion of so-called human rights, if we are concerned about human rights then we should look at where they are badly eroded in the world.
They are badly eroded in those countries, which for instance, do not allow unions, they have their unions bashed, and in those countries where people are seeking a minimum standard of living.
We have had the whole world turned upside down in our century because a great host of people out there have realized that there are no rights until you have the right to eat, and whole vast governments over half the world are based on that.
To me it is something that we have to be constantly striving and holding for ourselves.
If you look at the quiet revolution in the days of Quebec’s disaffection or the disaffection of native peoples, it always comes back to this bread and butter right.
The Joint Chairman (Senator Hays): Thank you.
Senator Phillips: Thank you, Mr. Chairman.
I should like to begin by telling the Committee that as a member of the United Church, I am not going to get into any theological discussions with the witnesses.
I notice throughout your brief that you have referred to the fact that the executive council of the United Church of Canada, the general council of the United Church was held in Halifax in August or September. At that time was there any discussion on the various aspects of the matter you have put forward in your brief? I should add that it shows how often I read the United Church’s Observer.
Mr. MacDonald: We would welcome any theological issue you would want to raise.
But in answer to your question, the matter of the United Church’s participating, as we are, today, was approved by the general council of the United Church when it met in Halifax in August. Now, the various issues on which we have made presentations are gathered from positions taken by that general council or its executive over a period of years, because one council does not deal with every issue.
As I indicated, the issue of collective bargaining was dealt with at different three general councils; on the issue of guaranteed annual income was dealt with at two different general councils; the issue of francophone rights and French-English relations was dealt with at two or three different councils. The major input in regard to native peoples, rights was at the general council in Calgary in 1977, and that was reaffirmed again this year. That indicates how it came about.
Senator Phillips: Thank you.
I was going to ask if native rights had been discussed in the Halifax Conference, and it was.
Mr. MacDonald: It was discussed in Halifax, but in a different context.
Senator Phillips: In various constitutions, there is a defined relationship between church and state. Here I am thinking particularly of the United States Constitution which very definitely separates church and state. I might add, thinking of one of the United States senatorial candidates who happened to have the name of Church and his opponent said it would separate Church and state.
I notice you avoid in your brief the relationship between church and state. Would you like to tell me your views on the relationship between state and church, and how it should be enshrined in the constitution?
Mr. MacDonald: I am not sure I can deal adequately with the last part of your question as to how it should be enshrined in the constitution.
However, I will comment on your question with regard to the view as to the relationship between the church and the state.
In my view-a view which is supported by various acts and actions of my church-the basic concept of separation of church and state may be summed up in this way: it is that the church should not be in a position where it can lord it over the state, or the state in a position where it can lord it over the church. That is a very general kind of statement. Yet, it is basic to what we are talking about.
That statement means that the church must be in a position where it can address the state on given issues. This would imply that the church is (a) informed about the issues; (b) to the degree possible, involved in the issue; and (c) that it is expressing the mind of the church at that given point in history. That is one of the things we would hold very precious in the United Church of Canada, the right of the Church to do that, as well as to be a free agent within the society. We would look to the state to guard that freedom.
Now, as to how that can be enshrined in a document of this nature well I must say I am not an expert in that area of constitutional law and how to write it; but the principle is the one we would want to have enunciated.
The Joint Chairman (Senator Hays): Your last question, Senator Phillips.
Senator Phillips: Thank you, Mr. Chairman.
In Canada the church has enjoyed certain benefits and I am thinking now of freedom from taxation, and, in fact, in the town where I once practiced, the town provided the church with free electricity.
I am thinking down the road to a court decision someday where the court will say: “this is not enshrined in the charter of rights”, and it is against an atheist’s belief that he has to pay taxes to support a church. If such a decision did occur, how would you react to that?
Mr. MacDonald: The United Church made a presentation to what was called the Smith Commission of the Government of Ontario a few years ago on the subject of taxation. At that time it indicated in the report that the United Church of Canada does at the present time pay taxes. It pays taxes on the property in which the Minister or any other member of the staff resides.
It pays the fees which are required for the upkeep of that property which is common to the city, town or municipality, the curbing, the sidewalks, things of that nature.
But it does not pay taxes on the immediate property which is referred to as the sanctuary and the Christian education wing, or whatever it may be called.
Now, I would simply say this: that I want the church to pay its way. I believe it does pay its way. If you were to take, in the congregation which I attend in Toronto-and this is true of most congregations I could think of-the contribution that church is making now in a voluntary meals and wheels pro-
gram, in a voluntary program for people who come in off the street and are looking for housing, jobs, food, the contribution they are making to the youth of the community through programs in which the youth use their property without charge, and voluntary leadership is provided-if you were to add up the total cost of all that contribution, if the city were to provide that, I am sure, without having gone into the calculations with a computer, that you would come to a figure much higher than the bill for taxes if the community were to provide the services which the church now provides.
So, on balance, I do not think the church, if that scheme were worked out would have any fear on this sort of proposal.
Senator Phillips: Before proceeding, I have one brief question. I can either put it now or later on.
I was more interested in how the church would react if, under the bill of rights, someone said they did not have to pay taxes to the municipality because the church was not paying municipal taxes. May I have an answer to that question, please?
Mr. MacDonald: The question has never come up in that precise form; but building on the answer I have given you previously, this person would have to convince the church of the validity of the illustration which I used.
Senator Phillips: No, it is the church which would have to convince the court.
Mr. MacDonald: All right. It is the church who would have to convince the court on that point.
Senator Phillips: And how would you convince the courts?
Mr. MacDonald: The best way I could.
The Joint Chairman (Senator Hays): Thank you very much, Senator Phillips.
On behalf of Mr. Joyal, the Joint Chairman and Members of the Committee, I should like to thank Dr. MacDonald, Reverend Robert Lindsay, and the Reverend Deschamps for being here this afternoon.
We appreciate it. I can assure you that your whole brief will be part of the proceedings as you requested at the beginning of your oral presentation.
We appreciate your being here and would like to thank you very much.
Mr. MacDonald: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): I would like to call to the witness table the representatives of the Federation of Saskatchewan Indians and the representatives of the Indian Associations of Alberta.
It is my pleasure on behalf of the honourable members of this Committee and on behalf of the honourable Senator Hays, our Joint Chairman, to welcome this afternoon the Indian Association of Alberta, and especially their president, Mr. Eugene Steinhauer.
I understand that the representatives of the Indian Association of Alberta will make their opening statement and then
they will invite their colleagues of the Federation of Saskatchewan Indians to come and make their oral presentation, too, and after that both delegations would be agreeable to receive questions by the honourable members of this Committee.
I think that is the kind of agreement that you want to follow for your presentation this afternoon.
So my first invitation would be for Mr. Steinhauer to introduce the other members of his delagation and make the oral presentation.
Mr. Eugene Steinhauer (President, Indian Association of Alberta): Thank you, Mr. Chairman.
On behalf of the Indian people in Alberta I would like at this time to express our appreciation for the willingness of the Committee to have us here to make our presentation today.
At this time I would like to introduce our delegation. On my immediate left is Mr. Willy Littlechild, our legal advisor and a lawyer from Alberta. On my right is Mr. John Snow, a long time Chief of the Morley Indian Nation in Southern Alberta, a well know leader of the past. On my far right is Charles Wood from North-Eastern Alberta, Chief of the Satellite Tribe, one of the most progressive tribes in Alberta.
Mr. Chairman, with your permission I would like to explain how we would like to proceed with our presentation. I would like to request that Mr. John Snow, who has a very fine presentation to make, be permitted to proceed and for myself, I will make the general presentation on behalf of the Indian Association of Alberta, but first of all I would like to ask Mr. John Snow to say a prayer for all of us in order that our deliberations will be successful today.
Mr. John Snow (Chief from Treaty 7: Indian Association of Alberta): Will you all rise, please.
I would like to offer a prayer in my own language. (Says prayer in native language). Amen.
The Joint Chairman (Mr. Joyal): I will have to ask for your leniency, President Steinhauer. You hear the bells as well as I and those bells are the bells of the House of Commons and they are calling the honourable members of the House of Commons to run, in a way, to the House of Commons for a vote, so I will ask for your understanding and I am sure that I have your cooperation to wait for us for about 15 or 20 minutes in this room. The honourable Senators do not have to come with us so they will be here to entertained or entertain you, and meanwhile we will continue our exchange and presentation just after that.
May I have your cooperation to that effect, sir?
Mr. Steinhauer: Yes, all right.
The Joint Chairman (Mr. Joyal): The honourable Jake Epp on the same point.
Mr. Epp: Mr. Chairman, possibly in view of the time, and we have another two witnesses tonight, I wondered whether it would be acceptable to the Treaty Number 7 people and the Federation of Saskatchewan Indians to make their presenta-
tion, we have their written brief and we could then come back and question them after.
That would be acceptable to me. I do not know, the NOP are not represented here and I do not know if that would be acceptable to them, but I would make that offer if that would help possibly both our Indian friends and the Committee.
The Joint Chairman (Mr. Joyal): Certainly. I understand that we have an agreement around the table on that proposal, so I have to suspend our meeting and we will reconvene at 5.10 p.m.
Mr. Beatty: Mr. Chairman, I am sorry, what Mr. Epp was suggesting was that in the absence of members of the House of Commons there would still be sufficient numbers of Senators that the brief could be heard and questioning could begin and as soon as the vote was completed members of the House could return to join the Committee again.
The Joint Chairman (Mr. Joyal): D’accord.
The Joint Chairman (Senator Hays): Is that agreeable?
Mr. Epp: If it is agreeable to our witnesses, that was the caveat, I wanted to make sure. Is that agreeable?
The Joint Chairman (Mr. Joyal): Mr. Steinhauer, we have a small procedural question on some small housekeeping matters on the honourable members side.
I might repeat the agreement that seems to go around the table, that we continue our proceedings even though some of the members are to be absent for the vote in the House of Commons and we would certainly not want you to take offence at that fact that some of the honourable members might be absent for a short while, but it is quite understood that they will come back as soon as the vote is over in the House.
However, we do not like to delay the representatives of the Federation of Saskatchewan Indians who are already in the room and want to be heard and we expect to hear them, too, as you might understand.
Mr. Steinhauer: I have conferred with my colleagues from Saskatchewan, and also the delegation from Alberta, and our feeling is that we can wait for the rest of the members to come back because of the fact that we have travelled a long way and this is sort of an historic occasion for us.
Mr. Epp: That is acceptable, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much for your cooperation, Mr. Steinhauer. We will be back as soon as possible.
The Joint Chairman (Mr. Joyal): Order, please.
May I request the honourable members 1of the Committee to take their seats so we can continue with our proceedings. I understand, Mr. Steinhauer, that the other honourable members will be here soon from the House to join us so that we have a full session, but I understand that you can continue at the point where we stopped when the bell rang a moment ago.
Mr. Steinhauer: Thank you, Mr. Chairman.
I would like at this time to ask one of our Chiefs of Alberta to state the declaration that we have, which was adopted by the national assembly here in Ottawa. Mr. Charles Wood.
The Joint Chairman (Mr. Joyal): Mr. Wood.
Mr. Charles Wood (Chiefs Constitution Committee for Alberta, Indian Association of Alberta): Thank you, Mr. Steinhauer.
Mr. Chairman, contrary to what has been offered in some quarters, the first people and nations of this country which we know as Canada have come to a common agreement in a declaration that was unanimously adopted on December 2, and this has been further identified to be a consensus of opinion from those people in that it was moved by Chief Saul Terry of British Columbia and seconded by Chief Stevenson Benard of New Brunswick, and we would at this time, Mr. Chairman, like to share a declaration of the first nations:
We, the original peoples of this land, know the creator put us here. The creator gave us laws that govern all of our relationships, to live in harmony with nature and mankind. The laws of the creator defined our rights and responsibilities. The creator gave us our spiritual beliefs, our languages, our culture and a place on mother earth which provided us with all our needs.
We have maintained our freedom, our languages and our traditions from time immemorial. We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the creator for the lands upon which we were placed.
The creator has given us the right to govern ourselves and the right to selfdetermination. The rights and responsibilities given to us by the creator cannot be altered or taken away by any other nation.
Thank you, Mr. Chairman.
Mr. Steinhauer: Mr. Chairman, before we present the Alberta position I will ask one of our outstanding leaders of Alberta, Mr. John Snow, to give his presentation.
The Joint Chairman (Mr. Joyal): Mr. Snow.
Mr. Snow: Thank you, Mr. Chairman, honourable members of the special Joint Committee on the constitution of Canada, ladies and gentlemen. I want to thank you for the opportunity to speak to you today.
I just want to tell you a little story. A man from Ottawa came out West to our Council meeting one day, he is semiretired, and our meeting started and he told us to: speak out loud because I am hard of hearing; and one of our elders, an Indian elder, he said that confirms a suspicion that I have had for a long time. I always thought people from Ottawa were hard of hearing.
Mr. Epp: Hear, hear!
Mr. Snow: Mr. Chairman, I think I am in a position to state something like that because I stand before you as a treaty Indian from treaty number 7 of Alberta and as an elected member and Chief of the Wesley Band of the Stoney Tribe and as a concerned citizen of this great island known today as Canada.
I have been an advocate of Indian Treaty rights and aboriginal rights even before I was elected Chief of my tribe. I was first elected 12 years ago and I was re-elected for my seventh term of office last week on December 11, 1980. Therefore, I will speak for my people of Treaty 7 on this very important constitutional matter.
In the brief time as an elected member I have witnessed, and I have been a participant in some of the most important events affecting my people, the first citizens of this great island.
I recall very vividly my first visit to the capital city of Canada, and my first meeting with the then newly elected Prime Minister and his Cabinet colleagues in Confederation Building. As many of you recall, the purpose then, over a decade ago, was to present the Red Paper to Prime Minister Trudeau, and then Minister of Indian Affairs Minister, Jean Chretien.
Back then the issues were almost the same as they remain today. Yes, there have been many changes since then-some good and some bad. Back then, we were fighting for our survival against a unilateral proposal to change the Indian Act and to end the Department of Indian Affairs and to place Indian people under provincial jurisdiction.
Mr. Chairman, I do not think it is an exaggeration to state, here before this Committee today, and before the citizens of this country, that the proposal before this Committee regarding the patriation of the constitution of Canada, will be the decisive battle that determines Canada’s relationship with the first citizens of this great country.
Our future is at stake. Our culture is at stake. Our sacred rights as aboriginal peoples of this great island are at stake.
This threat to our cultural and political survival is not new to us. It was the main concern of our forefathers who signed peace treaties with the Queen’s treaty Commissioners just over 103 years on September 22, 1877 at Blackfoot Crossing. We accepted the hand of peace with the new white visitors and immigrants; the missionaries, the NWMP, the ranchers and I finally the settlers. Suddenly, we found ourselves herded onto small parcels of surveyed lands called Indian Reserves.
We had little choice. The buffalo were exterminated. Food was scared. Disease continued to kill our people in unprecedented numbers. We were called a vanishing race.
But we survived through faith in the Great Spirit, who guided us through difficult times and who helped us retain our traditional culture, our values, our beliefs, and preserved our humble experience. We have survived despite the strongest measures to have us assimilated into the growing Canadian society. Our children were sent to boarding schools-but most of them returned home to their families and learned the traditional ways. We were forbidden to travel off the reserve without a pass from the Indian agent and our people were followed by the police.
Our religion awas outlawed by the Indian Act for many years until a new Indian Act was passed in 1951. Our petitions for additional reserve lands are repeatedly turned down or ignored. Our requests for the fulfillment of treaty rights regarding health, education, housing, economic assistance and Indian self-government are only minimally responded to. Indian programs, underfunded to begin with, are the first to feel the effects of government spending cut backs. The recent report by the Auditor General of Canada provides ample proof of mismanagement by the Department of Indian Affairs.
For over 100 years Indian people have been subjected to the autocratic and paternalistic rule of government officials despite our attempts to change these attitudes. My own tribe, the Stoney Indians living along the foothills of the Rocky Mountain, have sent numerous petitions requesting the redress of our treaty grievances. These letters now sit on the shelves of the Public Archives of Canada.
Our leaders were instrumental in organizaing the League of Indians during the 1920s and 1930s which culminated in the formation of our present provincial organization, the Indian Association of Alberta.
Ever since 1930, when the transfer of natural ressources was legislated by the British Parliament, we have been caught between the federal government and the provincial government Prior to 1930, our understanding was that we were co-owners with the federal government of the natural resources with the federal government of the natural resources in our treaty areas outside the reserve boundaries. Our own bitter experience over our rights as treaty Indians to hunt, fish, gather and trap on Crown lands-a right supposedly , entrenched in the 1930 Transfer Act-has taught us that we must be suspicious of new government legislation when it comes to preserrving our treaty rights.
It seems that we are constantly fighting new government legislation-both federal and, increasingly, provincial-that continues to undermine and compromise our treaty rights to
education, medical services, economic assistance and our right to selfdetermination as an Indian nation. It is our concern for these rights and the need to constantly remind the federal government of its trust responsibilities until we again assume selfgovernment which caused us to present the Red Paper in 1970; it is why we held the march on Parliament Hill in 197 4; and it is why we felt it necessary to emphasize our concerns by arriving on the Constitution Express here in Ottawa just two weeks ago. The Constitution Express was not a protest march. It was not a plan to occupy the Indian Affairs offices or to storm Parliament Hill with placards and catchy slogans. It was a reasoned and thoughtful and vital response to another government initiative that is of fundamental importance to us.
We want to emphasize our rights as the first citizens of this continent, long before Canada was founded as a colony of France and then Great Britain. We want to assert our rights of selfdetermination as indigenous peoples in North America. Patriation of Canada’s constitution offers an unique and unprecedented opportunity for the Canadian Parliament and for the people of Canada to redress the long litany of broken promises.
I do not plan to give a clause-by-clause analysis of the constitution proposals. That has been eloquently and thoroughly done by other national organizations of Canada’s indigenous peoples. The Inuit Committee on National Issues and the National Indian Brotherhood have prepared an extensive brief and made the presentation. We are part of the National Indian Brotherhood.
The over-riding concern of Canada’s Indian people is to have recognized in the constitution, as it is presently in the BNA Act, the special status and relationship of Canada’s aboriginal peoples.
With all due respect to the members of this Special Joint Committee, we believe that this Committee cannot fairly and equitably deal with the issue of aboriginal and treaty rights without direct representation by aboriginal peoples on the Committee. We should be sitting as part of this Committee, as direct decision-makers and contributors to the constitution. We are as much partners to Canada as the French and English peoples, indeed even more so, as we welcomed and helped show the original European immigrants how to survive in this land when they first came. Unless we as Indian people are on this Special Joint Committee our presentation here today will most likely be ignored and our paper will be lost in the shuffle. We were not and are not merely observers to the treaties. We were and still remain tribes and nations.
We refuse to let this Committee or the Department of Indian Affairs or, indeed, the Canadian Parliament arbitrarily determine our future and our special status and rights as aboriginal peoples. Thus, we are disappointed that we have been refused participation as equals in the constitution negotiations.
I just want to refer here to a story that was told to me by an elder, Jake Rabbit from Morley. I was interpreting for him one day and then he stated something like this. He said that we, as native people, Indian people, are the older brothers in this country and the white man is the younger brother. He went on to say that the irresponsible younger brother has made many laws, regulations, without consulting the older brother. I hope before it is too late, before too many mistakes are made, I hope the younger, irresponsible brother will consult the older brother.
It is difficult to know how to respond to a proposal that perpetuates the continuing lack of recognition of selfgovernment and selfadministration as Indian nations, the same as when we signed the peace treaties. We want to reiterate here, our willingness to remain a vital part of Canadian nationhood and to participate in the partnership of nation building. But before patriation of the constitution takes place, we want Parliament to acknowledge, fulfil and honour the treaty rights promised 103 years ago when Her Majesty’s representatives negotiated with our leaders at the treaties. The patriation of the constitution should not be rushed. July 1, 1981 is too soon to patriate the constitution. Our treaty rights must be specifically enshrined in the constitution; we are not willing that our future and our heritage should be at the mercy and benevolence of the Canadian Parliament and arbitrarily administered through the bureaucratic Department of Indian Affairs and the restrictive Indian Act.
Therefore, the Stoney Tribe of Alberta will not recognize the Canadian constitution 1980 until such time as our views are recognized by the Canadian Parliament, on whose behalf Treaty No. 7 was signed in 1877. We, the original peoples of this land, have close ties with this land. We are part of this land and this land is part of us. We are concerned about our future and the future of our children. We, as Indian people, have special rights and we want a voice in the House of Commons and the Senate in a renewed federation. The time has come for us as Indian people to have a place and to have representation in Parliament similar to that of the aborigines of New Zealand. Until such time as we are guaranteed these rights, we will remain opposed to the constitution as it is presently written.
If this country 1is to remain united, the federal government must listen to the concerns of its original peoples. There is much talk about separation in Western Canada but we do not support this view at this time. We, the Stoney Tribe, do not want to see our country broken up into pieces by foreigners who came to this land. We want to live in a united Canada, one Canada, a strong Canada, and this will only come about
when the federal government starts to listen to its original people, and the provinces. There is something seriously wrong when a federal government in a democratic land lacks representation across Canada and will not listen to its original people. We hope and pray that you will hear us and take note and act in accordance with our request before patriation of the constitution.
We call on this Special Committee and all Canadians to give recognition and support to our position that Treaty No. 7 and all other treaties and agreements with Canada’s aboriginal people be recognized and honoured by Parliament before patriation is carried forth.
Thank you for your time and thoughtful consideration to these views of my people. Thank you.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Snow. Mr. Steinhauer.
Mr. Steinhauer: Thank you, Mr. Chairman.
Today we speak as the descendants of our grandfathers who signed treaties with the Commissioners representing Her Majesty Queen Victoria in the late 1800s. These treaties, in the contemporary context of international law, are as valid today as they were then. The various governments of this country have made attempts to abrogate our treaties in one way or another. In spite of this, our treaties stand stronger than ever because we have had to rise as First Nations to defend them. We have had to struggle to maintain our treaties on our own reserves, in national forums such as this one, and internationally in far off places such as New York, Rotterdam and London. The more we have to struggle, the more resolute we stand!
As we speak on behalf of our elected Chiefs and Councils and people of the three treaty areas in Alberta, it must be understood that because of the unique history, geographical location and political events that characterize each treaty area, there exist minor differences of opinion on how we must cope with the matter of preservation of our treaty and aboriginal rights. However, there is total solidarity for protection of our rights as set out in the treaties, coupled with a mutual understanding and respect for the political orientation of the leaders in each treaty area.
Finally, it must be understood that our appearance here today should not be construed to mean that we are accepting the Charter of Rights as outlined in the proposed joint address of the Canadian government to the British Parliament in England. Rather, we are persisting in our demand that our proven, valid treaty and aboriginal rights be enshrined in the British America Act before patriation. Our position in this regard is firm since our rights are being placed in jeopardy.
The proposed resolution has, as we see it, three main purposes: to “patriate” the British North America Act and provide for an amending formula; to entrench a Canadian
Charter of Rights and Freedoms; and, finally, to entrench the principle of equalization, et cetera.
Our historical obligations to our own people, however, compel us to offer the following reservations and doubts concerning the federal government’s “patriation package”. In the belief that the federal government must proceed in good faith and recognize and respect by making appropriate amendments or additions to the text of the proposed resolution before patriation.
We were, and are today, the original peoples and nations of Canada. We do not wish to denigrate the legal pretensions of those who speak of “two founding nations” in CanadaFrench and English-when we point out that our claims to original nation status predate both those groups and are more substantial in terms of legal foundations. The proposed resolution, as presently drafted, cannot be accepted as it refers only obliquely and in passing to Indian rights. We recommend that Section 24 be redrafted so as to recognize and entrench Indian legal rights that flow from Indian Treaties and aboriginal rights. A new Section 24(2) should be added to the proposed resolution with the intention and effect of preserving traditional Indian rights.
The principle of the selfdetermination of peoples is recognized today by the United Nations as one of the imperative principles of contemporary international law. We seek selfdetermination, as a people, within a renewed Canadian federalism. The present Indian Act which purports to define our legal relationship to the Canadian people as a whole must be replaced with a new covenant of Indian selfgovernment which would establish and define, through proper entrenchment, legal relations between us and the Canadian government. It would provide institutions of Indian selfgovernment and our law making competences, much in the way that the present Section 92 of the BNA Act establishes and defines the powers of provincial governments within Canadian federalism. We suggest, for these purposes, the enactment of a new Section 93 of the BNA Act, constitutional status of the Indian people, Indian selfgovernment, is appended below, under recommendation (2)(b). The absence of any positive provision for our selfdetermination and selfgovernment generally constitutes, in our view, a major gap in the British North America Act. The existing Section 91(24) of the BNA Act should be retained with a suggested amendment in so far as it purports to define and limit federal-provincial legislative competences and until our selfdetermination and self governments are actualized.
It is a matter of record and judicial notice that we were dispossessed of our lands in what is now Canada, sometimes by questionable means like purported legal transfers. The Indian Treaties have so often fallen into that category that contemporary public international law rightly designates them as unequal treaties. We intend to pursue and rectify our just claims
as to land and natural resources that flow from treaty and aboriginal rights, utilizing as fully as possible all political and legal processes. It would seem appropriate for the Canadian government’s current patriation package to include express mention thereof and we offer, in this regard, a draft amendment to existing Section 109 of the BNA Act, recommendation (3) below.
Indian selfdetermination and selfgovernment within Canadian Confederation, in terms of the proposed covenant of Indian selfgovernment would involve also, as a constitutional correlative, full legal participation of the Indian peoples in the general institutions and processes of Canadian government as a whole. We would recommend, in this regard, a review of Sections 22, 37 and 51 of the present BNA Act.
Our selfdetermination and selfgovernment within Canadian Confederation must involve full participation in the cum:nt constitutional debate. It is a matter of regret for us that we have never been included in the on-going constitutional review process. We would recommend that we be expressly included in any resumed constitutional process, and on the same full legal and voting basis as “citizens plus”.
1 (a) Amend Section 24 of the proposed resolution renumbered now as Section 24( I) to replace phrase: “including any rights or freedoms that pertain to the native peoples of Canada”, by including any Indian legal rights flowing from the Indian treaties and also from aboriginal rights and any rights or freedoms that pertain to the native peoples of Canada generally.
1 (b) Add new Section 24(2) to the proposed resolution, Section 24(2):
The fundamental rights and freedoms enumerated in this charter shall not apply to Indians and Indian lands except in so far as they are expressly adopted by the Indian nations through their regular institutions of government.
2(a) Retain Section 91 (24) of the BNA Act, but amend “lands reserved for Indians” to “Indian lands”.
(b) Add new Section 93 to the BNA Act in replacement of existing Section 93, education, which should be retained but renumbered: Section 93, Constitutional Status of the Indian People: Indian selfgovernment; the aboriginal rights; rights flowing from the treaties as set out in schedule attached hereto; and also the rights deriving from the relationship of trust between the Crown and Indian Nations, including those flowing from aboriginal rights, treaty rights and also general law, including the right to selfgovernment, shall not be taken away without the consent of the Indian Nations through their regular institutions of government.
The Indian government shall have exclusive power to make laws with regard to Indians and Indian lands in the following matters:
The establishment of a covenant of Indian selfgovernment including the institutions, procedures and processes of government and the establishment of a court of Indian jurisdiction, and the power to amend such a covenant;
Education, health, welfare, Indian citizenship, labour, the administration of justice, municipal affairs, Indian corporations, and the preservation and protection of fish, plant and wildlife;
The raising of money by any mode or system of taxation including participation in existing intergovernmental taxation and revenue sharing agreements, or similar agreements that may be concluded in the future;
The strengthening and maintenance of the distinctive languages, culture, and traditional and religious values of the Indian nations.
We would add to the existing Section 109 of the BNA Act the following sentence, at the end of the existing text:
The rights granted to the provinces under this section are subject to the just and equitable settlement of any outstanding Indian legal claims deriving from aboriginal rights, treaty rights and other rights stemming from the special relationship of trust between the Crown and the Indian nations.
Provide for direct Indian participation and representation in government institutions of national concern.
The next one: provide for participation by the Indian people, on the same full legal and voting basis as “citizens Plus”, in any resumed constituent process directed towards the elaboration and adopting of a new or renewed Canadian federal system.
The following propositions are respectfully submitted for the consideration of the members of the Special Joint Committee.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, President Steinhauer.
I understand that completes the presentation that the Indian Association of Alberta want to make at this point to hon. members of this Committee.
If agreed, I would like now to invite Mr. Sanderson, the Chief of Federation of Saskatchewan Indians to come to the table.
It is my pleasure to welcome on behalf of hon. members of this Committee Mr. Sanderson, Chief of the Federation of Saskatchewan Indians.
Mr. Sanderson, I would like you to first introduce the members of your delegation and then to proceed with your statement. After that we can have discussions and an exchange
of comment and questions between you and hon. members of this Committee.
Chief Saul Sanderson (Chief of Federation of Saskatchewan Indians): Thank you, Mr. Chairman.
The gentleman immediate to my right is Mr. John Tootoosis, one of the Senators of the Federation of Saskatchewan Indians. He has been in Indian politics for 50 years. To his right is one of our solicitors, Rodney Soonias; to my immediate left is another one of our solicitors, Ms. Delia Opekokew; another one of our attorneys that we use is Mr. Kirk Kickingbird; next to Mr. Kickingbird is Mr. Doug Cuthand our First Vice-President.
On behalf of the Chiefs and the Indian people of Saskatchewan, I would like to thank you for the opportunity to be able to present our position.
I would like to ask you to keep an open mind and to try to visualize how we view what we call a true Canada. We would also ask you not to get hung up on labels that we might use. I would say, too, that this is not the only forum that we will be using. We will be using many forums to achieve Indian rights in Canada.
For the benefit of members present, the Federation of Saskatchewan Indians is an assembly of 69 bands and represents the Saulteaux, the Chippewan, the Assiniboine, Dakota and Lakota Sioux and the Cree nations. They signed the treaty from 1872 through to 1972 with the Crown. The treaty territories are covered by treaties numbers 2, 4, 5, 6, 8 and 10.
Indians, for the purposes of our communications here today and for the future, is defined in the national category and not in a racial category. If I can give you some examples, you talk about Canadian, you talk about the French Canadian, the English Canadians, the Ukrainian Canadian and so on. Likewise, when we talk about Indians, we have various Indian nations across Canada which fit into the category of Indian nationhood.
Indian nationhood, of course, is recognized by treaty and it is also recognized by the Royal Proclamation.
We talk about original rights of Indian people in Canada. We are talking about the economic, social, cultural, spiritual, political, land and resource rights. If the Committee has difficulties in understanding the aboriginal rights questions, those are the specifics we are referring to in our discussions.
Mr. Chairman, I would like to call on Senator John Tootoosis, one of our elders from Saskatchewan, and we are going to ask him to stand because he emphasizes himself much more clearly when he is standing, and I would like him to address the treaties and make a presentation to you and the Committee here.
The Joint Chairman (Mr. Joyal): Senator Tootoosis.
Mr. John B. Tootoosis (Senator, Federation of Saskatchewan Indians): Thank you, Mr. Chairman.
I am very thankful to be able to stand before you this evening to deal with the subject of treaties, the treaties we made with Her Majesty, Queen Victoria of England, which was a peace agreement allowing the new people to become our neighbours for all time. The Queen’s representative, in his statement, also agreed, making use for the special purpose of a sacred pipe stand which was to stand for all time. So that is one reason why we have this interest in upholding the treaty, because the Indians have also taken the same oath.
The Indian nation was given a parchment as well as a silver medal which I have here, and Queen Victoria is engraved and an Indian and here is the parchment which I would like somebody to distribute.
At that time we were given to understand that this was a treaty of peace and an agreement which the Indian nation and the English would respect in every sphere, in every area, and as long as the sun is above us and the rivers flow and the grass grows, the treaties are the highest in all the laws of Canada, including English laws, and it is up to the two nations first to make decisions on the treaty, not by the Canadian government to try to have ways and means of weakening the treaty. We cannot commit ourselves to the Canadian government in a way as to endanger the treaties and thus reduce it to the level of the ordinary land laws of the land.
We are interested in taking a stand as a nation with the nation that we dealt with, the English nation. Canada should act to protect Indian rights, the laws, the right not to be abused, and to act otherwise, Canada, the Canadian government would be violating a trust towards the aborigines which was given by Great Britain.
We want further to have the treaties entrenched, but it must be made in England.
Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Tootoosis.
Chief Sanderson: Thank you.
Mr. Chairman, we have tabled a copy of the articles on each of the treaties referred to and the adhesions signed since then.
I would like to remind the Committee and the people of Canada that the latest treaty adhesion that was signed was in 1972, not so very long ago.
It is these aboriginal and treaty rights which must be entrenched in the present BNA Act or a patriated constitution.
We want to examine, Mr. Chairman, some of the substantive issues and realities which affect all Canadians.
Number one: we are the original peoples and will not accept a constitution based on a French-English cultural alliance that provides for equality before the law and not equality in fact.
Secondly, the 400 years of European history and presence in Canada we accept as part of Canada’s rich heritage, just as we accept all the flags behind you, Mr. Chairman, representing the sovereignty of governments in Canada. They are, too, part of the rich heritage of Canada.
Thirdly, the Imperial government started decolonization 40 years ago. In the majority of cases the Imperial government returned the country back to the original peoples.
Fourthly, there is a body of legislation, agreements and practices which presently constitute Canada. They were enacted and entered into by the Imperial government, the Canadian governments and the Indian government.
We also ask what will be the presence of the Crown in Canada. In our dealings with governments, sometimes we feel we have 11 different Crowns in Canada.
Sixthly, what commitment is there by the Canadian people and their governments to the principles of international Jaw, as they affect the rights of original peoples of Canada?
Mr. Chairman, we have documented and published our historical, moral, legal and political position as the original peoples of Canada prior and since Confederation, prior to and since the treaties have been signed, and I am going to ask one of our solicitors, Delia Opekokew, to outline the book entitled The First Nations: Indian Government and The Canadian Confederation.
I think we have distributed copies to every member of Parliament and it is the most comprehensive document you will find in Canada respecting the Indians’ presence here. I will now ask Delia to address that book and outline briefly for the Committee what it contains.
The Joint Chairman (Mr. Joyal): Miss Delia Opekokew.
Ms. Delia Opekokew (Legal Counsel, Federation of Saskatchewan Indians): Thank you. Thank you, Saul.
Honourable Chairman, honourable members and honourable Senators, the concept of the book came into being in the context of the constitutional renewal discussions and the concern of the Federation of Saskatchewan Indians to have our sacred aboriginal and treaty rights entrenched. It presents the background ideas within which the confirmation of our aboriginal treaty rights in the Canadian constitution is the natural evolvement of the original trust responsibility established between the Indian people and the Crown in the treaties.
The first chapter, and I will summarize each chapter very shortly, and I hope that most of you will have had a chance to read the book, the first chapter deals with early history.
We establish the fact that Indian political activity and that Indian societies had their own governments to satisfy their needs before the non-Indian governments asserted sovereignty
over Saskatchewan. The Indian governments exercised full authority over their territories and today that sovereignty is part of the aboriginal and treaty rights.
Most Indian governments in Saskatchewan were democratic with power distributed among the individuals and institutions. Although the people had the power, it was necessary for economic and military reasons to delegate that authority to a higher governing council. The tribes, therefore, exercised the powers of nations.
With the contact period the economic aspects of it became important. Trade and commerce, though, were practices that were followed by Indian people before the contact with the European immigrants. Trade and commerce between the different nations existed before the introduction of European goods.
For the plains people, the Mandan nation’s trading center represented a high point in their economic organization. The trading empire extended westward to the Pacific and to the South, to the area known eventually as the Spanish colonies, to the Hudson’s Bay in the North and to the Lake of the Woods in the West. The Mandans were agriculturalists, craftsmen and artists who traded their goods for other goods of the plains at annual trade fairs, therefore the Hudson’s Bay Company initially was an arm of that empire. The company did not start the tradinc activity but entered it as an arm of the existing trading empire.
The Indian people, therefore, participated in the non-Indian trade because of their past positive experience with trading.
From about 1660 the Indian people of the area now known as Saskatchewan ente.-ed into a trading relationship with the Hudson’s Bay Company. The economic relationship of the Company and the Indians centered on the fur trade with the Indians acting as fur producers, food suppliers and front men. The fur trade was the most important force influencing the economic and political development of Western Canada between the period of 1660 and 1870. For over 200 years, therefore, the Indian people were the key to the development of the Canadian West.
In 1870 the Hudson’s Bay Company transferred Rupert’s Land to the Canadian government. The Indian people did not recognize the transfer as they had not transferred any property rights to the Hudson’s Bay Company.
The chapter ends by documenting the wealth generated by the work of Indian people, particularly in the fur trade. That wealth was used to finance many of Canada’s present institutions.
This chapter is used to attack the false notion of the two founding nations concept developed by the French and the English and to assert that without Indians Canada would not have been found.
The next chapter, chapter 2, deals with the treaties.
Following certain events, including the 1870 transfer of the Hudson’s Bay Company lands, the Indians agitated for treaties. They stopped the settlement process in many different incidences until their rights to the land and their sovereignty was recognized.
The treaty making process was adopted and the Commissioners appointed to do so treated the Indian people as nations with full title to their lands. Later, as the European immigrants became stronger, the treaties were narrowly interpreted so that many of the original terms were not followed or were never written into the treaties.
A comparison is now made of the present status of treaties in the United States and Canada to show that the concept of sovereignty is part of the principle of aboriginal rights in the United States.
We now go into chapter 3 which is entitled the Colonial Parallel of the Indian people.
Other parts of the world such as Asia and Africa have also undergone European colonization with the difference that the aboriginees’ right to their homeland and selfdetermination has been recognized by the imperialist countries and the international community. In Canada the Indians may never be able to expell the white man or subdue him in their efforts to create an Indian synthesis in our own Indian nation, but we must have the right to develop our own nationhood within the larger state.
The legislation, litigation and political-legal process over Indian matters has been between colonial governments, government jurisdictions such as federal-provincial levels, always private and non-Indian groups so that Indians have had very little input over the policies and laws that affect them today.
Policy, such as that affecting education, has been used to attack Indian culture. The government policies and laws have undermined Indian governments so that they have very little power over their own lives. The policies advanced by the government have cause deplorable social and economic conditions among Indian people.
Chapter 4 deals with the Indian peoples’ response and resistance efforts.
The events following the treaties are identified. Once Indians perceived that the government was acting in bad faith a movement started to demand better treatment. Late in the 19th Century Chief Big Bear and Poundmaker, among other great heroes, worked towards a confederation of the Indian nations to renegotiate the treaties. The Indians had been honourable on their side and had lived up to the spirit and the intent of the treaties.
After the Northwest rebellion in 1885, Indian people again tried to co-operate with the government but their co-operation was not accepted. A movement started in the early 20th
Century to improve the conditions of the Indian people and to have the treaty terms honoured. There are many examples of organizations across Saskatchewan working towards that goal as the Federation of Saskatchewan Indians is now doing.
However, throughout that period the government of Canada, through its Department of Indian Affairs worked against Indian interests. Policies are actually established to destroy the Indian culture. We actually do document some of the fact situations that were found through this period up to the present which were used to destroy Indian culture.
Chapter 5 deals with economic selfdetermination. The concept of political and cultural rights is without value if it is not accompanied by the control of economic development. The Indian people have always understood the importance of economics in so far as the preservation of hunting, fishing, trapping and gathering rights was the major concern during the various treaty negotiations.
Today Indian people want to integrate the domestic, that is the traditional economic life, with modern methods of economic development, and Mr. Doug Cuthand will be going into that later.
Chapter 6 deals with the Federation of Saskatchewan Indians’ position on the Canadian constitution. Selfdetermination is a principle advanced by the Quebecois which was analysed by the Royal Commission on bilingualism and biculturalism, particularly in its first report of 1963. Indians have a greater moral right to that principle than the French and English. As long as Indians are not recognized as a people by Canada, the laws and customs of the country will continue to be based on racism and discrimination. Equality of fact as identified and defined by the Royal Commission is the avenue open to Canada to recognize Indians’ right to participate in the Canadian institutions.
Collective or community equality, based on the preservation and advancement of Indian cultural identity must manifest itself in two particular areas, that of economic life and political life. The Canadian Confederation must develop on the basis of equal partnership between the three founding races. In other words, Indian government must become the third order of government in Canada.
The rest of the book touches on other points which you can identify yourself. One of the major areas in the appendices is the study done for the Federation of Saskatchewan Indians on international law. Mr. Kirk Kickingbird, an attorney, from Washington, D.C., who is with the Institute for the Development of Indian Law will deal with that portion. He has worked extensively with the Federation of Saskatchewan Indians.
The Joint Chairman (Mr. Joyal): Thank you, Ms. Delia Opekokew.
Chief Sanderson: I will now call on the attorney, Kirk Kickingbird, to deal with the appendix dealing with international law.
The Joint Chairman (Mr. Joyal): Certainly. Mr. Kickingbird.
Mr. Kirk Kickingbird (Legal Counsel, Federation of Saskatchewan Indians): Mr. Chairman, members of the Committee.
Appendix A is entitled the Indigenous people of Saskatchewan Take Their Rightful Place in the Community of Man. This section of the book addresses in greater detail the question of the international legal status of the Indians of Saskatchewan, and more specifically the right to survive as an identifiable political, cultural, racial and economic unit of selfdetermination in international law. It emphasizes that this is a paramount human right applicable to Indian people and based on the principles of equality and nondiscrimination.
Indigenous populations such as the Saskatchewan Indian are treated somewhat differently in international affairs from nonindigenous populations. Although there has been a plethora since World War II of international conventions, conferences and United Nations declarations on the topic of human rights, the definition of a human right is much more simplistic and ancient than one might imagine. Certain basic rights inhere in men solely by virtue of their humanity and not by reason of their race, creed, colour or political strength. Human rights received scholarly sanction by the work of Francisco Victoria, the Spanish jurist and theologian of the 16th Century, who argued that Indians were entitled to certain basic rights, and this doctrine of Victoria was given papal support by a decree of Pope Paul in 1537.
Prior to the creation of the United Nations there was no accountability between states for the deprivation of human rights within a given country. This was deemed a matter of domestic jurisdiction and out of the purview of international relations. After World War I, concern for collective rights of displaced minorities emerged, but emphasis on collective rights soon proved insufficient in light of World War II and the Nazi holocaust. A more general protection of human rights was deemed necessary, a protection that would be afforded to people as individuals.
The Indians of Saskatchewan are a people entitled to three well-defined human rights under modern international Jaw: the right to physical existence, the right to selfdetermination and the right to use of their own natural resources. It is essential to differentiate between a people and a nation, although the two terms are sometimes used interchangeably.
In general parlance, a nation is easily defined in that it consists of the entire citizen body of a state; it is a political categorization.
On the other hand, a people is a more tenuous concept, defined more in terms of social and cultural continuity than in terms of politics. There is a Jewish people and an Israeli nation, a Bengali people and an Indian nation, an Irish, Scotch, Welsh and English people and a United Kingdom, an English, French and Indian people but a Canadian nation.
Therefore, a people is a unit into itself, often referred to as unit of selfdetermination, whereas a nation may be comprised of several units, several peoples. On an objective level, an ethnic group must share a common history, be linked by a common destiny, and manifestations of this link are found in common territory, an enduring tradition, a distinct language or religion.
The Indians of Saskatchewan have experienced many periods of trial and error and have endured up to the present as a united people. Admittedly, a people may lose its territory for a time, be forced to speak another’s language or be the object of a missionary’s alien religious zeal; but if a group remains a distinct unit, although different from its origins, it remains a people with all the appropriate rights under international law.
Basically, the right of selfdetermination is a right of a people under colonial and alien domination to choose the path of its own destiny. It is a peremptory norm of international law which possesses political, economic, racial and cultural aspects. Although it is an accepted principle of law at this time, the notion of selfdetermination rose as a moral and political concept early in the 20th Century. Essentially it resulted from questioning the kind of colonial domination that existed throughout much of the world, particularly in Europe, Asia and Africa.
The principle of selfdetermination has made a full transition from a political concept to a legal right in conventional and customary law. The special apporteur for the United Nations study on the right to selfdetermination maintains that no one can challenge the fact that, in the light of contemporary international realities, the principle of selfdetermination necessarily possesses the character of jus cogens. This means that the Indians of Saskatchewan have a sacred right-to change their situation from that of a dominated people to that of a political independent one. Although the Indian trust relationship with the Canadian government is not an example of classic colonialism, selfdetermination does apply to the Indian context.
The Indians of Saskatchewan have never totally integrated with the Canadian super structure; they maintain their own political infrastructures and continue to adhere to their own cultural traditions. Therefore, any attempt on their part to separate from the body politic of Canada would only make official an already existing situation of historical record.
The analysis of the right to self determination has led to the following conclusions:
The right is a well accepted principle of international law; it generates obligations as part of customary international law; it
can be exercised in colonial and noncolonial circumstances; it can be exercised by people who share a common history and culture and who constitute a unit. Minorities as minorities do not have this right; the use of force in exercising the right is not an act of aggression.
Now, people have the right to choose their own forms of government. This is perhaps the single most important element in the right to selfdetermination. The choice is not predetermined and is wide open, ranging from a modest regime of local autonomy, through forms of federal association, to full fledged separate international personality, that is statehood and independence in other words. The principle of selfdetermination embraces the possibility of a range of options.
In conclusion, the human rights inuring to the Indians of Saskatchewan as an indigenous people cannot be underestimated. They have the right to live in an environment that is healthy both mentally and physically, and to be free from genocidal practices, both subtle and obvious.
As a people, they constitute a unit of selfdetermination and may develop politically in any direction they choose. As internally sovereign nations with full domestic powers, the Indian Bands of Saskatchewan have governments capable of entering into international intercourse. As an indigenous people with special rights in international law, they are entitled to their aboriginal homelands and to full control over their natural resources. They are a people whose right of selfdetermination is eternal and therefore whose present trust relationship with Canada is but a stepping stone in their political, social, cultural and economic development.
As the original founding Fathers of Canada, they have the right to choose their own lifestyle. General international law guarantees this right as paramount and unbridgeable.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Kickingbird.
Chief Sanderson: Thank you, Mr. Chairman.
In addition to that appendix we have another appendix in the book that specifically discusses each of the articles of treaty and the Committee should be reviewing those. We also have an appendix to that book, the Case Law in Canada, and the Special Committees that have been struck by this Parliament here to address the Indian presence in Canada and we summarize those positions.
Our treaties provide for a special confederate relationship that would strengthen Canada if addressed properly. Treaties provide the Crown with certain conditions for protection, a protectorate trust relationship that cannot be ignored.
To examine the special Crown-Canada-Indian trust relationship we must formerly address, one, the degree of entrenchment for treaty and aboriginal rights; two, the recognition of Indian government as there exists clear areas of jurisdiction and there can be negotiated shared areas of juris-
diction for Indian, federal and provincial governments in Canada.
The reason for that, Mr. Chairman, is because we are talking about the same lands, the same resources, but under treaty our people reserve lands keeping intact sovereignty for Indian people over those lands.
In addition to that, in the treaty territories we have 12 different kinds of Indian lands guaranteed under treaty besides reserves lands.
Number 3, the protectorate office and a trust relationship, and for that, Mr. Chairman, I am going to ask our solicitor, Rod Soonias to address the degree of entrenchment and so on, and you have with you a pamphlet like this that is available to follow.
The Joint Chairman (Mr. Joyal): Mr. Soonias.
Mr. Rodney Soonias (Legal Counsel, Federation of Saskatchewan Indians): Mr. Chairman, honourable Members and Senators, ladies and gentlemen.
I would just like to comment about what Senator Tootoosis said a little earlier, that is that the unique status that Indian people enjoy in Saskatchewan and the rest of Canada comes from aboriginal sources and also from treaty covenants made between Indian Nations and the Imperial Crown. We consider these treaty covenants to be sacred and non-negotiable.
It has, however, been our experience that other Canadians, and especially the Canadian governmental systems, do not share our respect for these treaties. For the past 100 years there has been a continuous erosion of these rights and I would just like to explain briefly how this has been done.
Number one, our treaties and aboriginal rights have never been recognized within the constitution. It is true that there is peripheral mention of them but not in a significant way.
Legislatively, Parliament has extended the application of provincial laws to apply to Indians and Indian lands, which is contrary to the intent of treaty. The judicial system has given sanction for Parliament to break treaties. The executive involves itself in jurisdictional hassles over Indian rights and Indian resources and too often the rationale for this is the larger public interest. What about the Indian interest?
It leaves one to conclude that treaties are not to considered by the Canadian system as terribly relevant or important. For this reason our leaders have tried to find a mechanism to safeguard and enhance our rights, and the way that has been chosen in Saskatchewan is through entrenchment. I would like to refer you to this pamphlet, to Section 93(a) and I would like to read it to you:
Notwithstanding any provision in the Canada Act or in the Constitution Act or in any other act and being cognizant that the solemn undertakings made to Canada’s aboriginal peoples in the Royal Proclamation of 1763 and in prior subsequent treaties between such peoples and the Crown are inviolable it is hereby declared that now law of
any province and no law of the Parliament of Canada heretofore or hereafter enacted, shall be interpreted so as to abridge, abrogate, repeal or extinguish any provisions of a treaty; or any commitments made in the course of negotiations resulting in a treaty; or any treaty or aboriginal rights and, without limiting the generality of the foregoing, more specifically, those treaty or aboriginal rights relating to land, government or culture.
Besides drafting this clause to entrench our rights, we have also drafted those legislative powers over Indian governments will have power and I would like to refer to some of these in Section 93(b):
Notwithstanding anything in this act including any other clause the Indian government legislature may make laws applying on or off reserves in relation to Indian Government constitutions and any amendments to that.
I will just summarize these: band membership, status and citizenship, education, culture and language; election; family law; taxation; hunting, fishing, trapping and gathering; trade and commerce; incorporation of companies; criminal law and procedure and so on.
Because we do not believe that we are going to be able to institute all these laws right away we have a section in there which reads:
Except as otherwise provided by the Indian government legislature, all laws in force in Canada and the respective provinces shall continue to apply, insofar as they relate to matters within the jurisdiction of the Indian government legislature, subject nevertheless to be repealed, abolished or altered by the said legislature pursuant to the authority conferred upon it.
As Senator Tootoosis said earlier we want these rights to be entrenched within the constitution but not by the Canadian Parliament but by the British Parliament.
In addition in section 94 we talk about an Indian Rights Protection Office. As I indicated earlier our treaty and aboriginal rights have been eroded by the court systems because they have to abide by rather strict rules of procedure and interpretation. What has happened is that our rights have suffered and for this reason we want to institute an Indian Rights Protection Office which would act to monitor what is happening within governments so that if there is any infringement or intrusion on Indian rights that we will know about it and that hopefully there can be a political resolution to these things.
We talk about executive federalism in our paper. At most first ministers conferences, in fact all of them, our leaders are lucky to have observer status. We find this unacceptable and what we want now is to have our leaders as part of executive federalism in Canada.
Even though there is a lot of debate also in Canada and in Britain about whether or not Canada has all the power over
Indians or whether a vestige of this remains in Great Britain we feel that residual power over Indians and Indian lands remains in Great Britain and we have accordingly included it in our paper.
Now that we are at a time of depleting natural resources, those natural resources that we have are coming under attack and they are disppearing. Consequently we have drafted a clause which reads:
It is hereby acknowledged and affirmed that natural resources reserved under treaty and aboriginal rights continue to be vested in Indian people, and they shall not be deprived thereof except expressly and with compensation payable therefore as decided by the Indian Rights Protection Office.
We submit this for your respectful consideration. Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Soonias. Chief Sanderson?
Chief Sanderson: I would like at this time to call upon Mr. Doug Cuthand, one of our vice presidents, to describe to you and the Committee some of the institutions we are putting in place in Saskatchewan.
The Joint Chairman (Mr. Joyal): Certainly.
Mr. Doug Cuthand (First Vice President, Federation of Saskatchewan Indians): Thank you Mr. Chairman. I think there are two important points that we have to make in this presentation and that is, first of all, the development and implementation of Indian government means the responsibility of the Indian Nations themselves. We do not have to get anybody’s permission to set our governments in motion. Mr. Chairman, you will notice that John Tootoosis has handed you the copies of the treaties and if you go through them you will notice we were treated as international governments at that time. The question of us giving up our sovereignty was not in question, it was not an issue under debate at that time, and therefore it is an aboriginal right that we have retained to this day. We have our political rights and we are now in the process of putting them into place.
The second thing we have to realize is that we are talking in real terms about Indian government. We are not talking about an impossible dream. We are talking about something that is being put into place daily and something that we believe very strongly in and something that is not a dot on the horizon but is in fact taking place right now.
You will notice we have circulated for your information a structure of the federation of Saskastchewan Indians. This chart represents institutions that are in place in Saskatchewan right now. On the centre you will notice the Saskatchewan Indian chiefs want our basic unit of political development and we follow that principle at the band level, at the district level, at the provincial level and at the national level with the Assembly of First Nations. The power of the Indian government rests clearly in the hands of the chiefs and all the other
institutions that are put into place are put there to enhance Indian government and to strengthen the role of the chiefs.
We also have chiefs policy development boards; we have 17 now in Saskatchewan. They are run by the chiefs. We have the education board; we have three colleges; we have the community college; the federated college and we have the cultural college. Each one of these institutions puts in place one aspect of education.
The federated college handles the post secondary degree granting education program; the community college is our technical training centre, that is where we teach the skills; and the cultural college is a developmental centre. That is where we develop curriculum material and support our institutions and schools on reserves.
Every one of these policy development boards is run by the chiefs and for one example I would like to direct your attention to the economic action resource management program. That pamphlet is also in your kits that we circulated. That is the economic action program in Saskatchewan. Thirteen chiefs sit on that board. They make up policy in the economic field, and we are talking here about the resource management of our resources; we are talking about the future development of our economies and we are talking about the technical and necessary training that we will need to support these developments.
We also have, for your information, another structure that we have established. It is called SINCO, Saskatchewan Indian Nations Company. I suppose your closest equivalent here would be a Crown Corporation. It is an Indian Crown Corporation. It is controlled by the chiefs again. The chiefs form the central policy making core of the company. We are in business in Saskatchewan in a big way and we are going to take part in the development and we are going to become part of the economy of the province and the economy of the country. We are very determined not to limit ourselves to the borders of the reserves but to rather branch out and take part of all the benefits of this land.
In conclusion, Mr. Chairman, I would like to request at this time that we formally attach the items that I have brought forward and the other items that we have brought forward today as part of the appendix to the final report of your Committee. We would like this information made available to all the Committee members, members of Parliament and members of the Senate, and members of the public at large.
Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Cuthand. Chief Sanderson?
Chief Sanderson: Thank you, Mr. Chairman. Just in closing I would like to make a few more remarks and say that the lack’ of proper legislation provided for the force of law that is needed for the treaties and the formal process to achieve Indian rights that is missing in Canada has caused serious Canada Indian jurisdictional disputes. This results in government and Indian people trying to correct symptom problems. To give you an example of symptom problems, talk about high
unemployment, serious alcohol problems, high suicid-: rates, poor living conditions, membership problems, I could go on and on Mr. Chairman with the symptom problems that we experience in Canada, these same symptoms can be witnessed in any country, community or society for people who have lost effective control over their specific economic rights, social rights, and when I talk about social rights I am talking about education, health, social services, their political rights, their cultural and spiritual rights and their land and resource rights. We also in Canada have to address formally a proper Canada Indian fiscal arrangement and that must be addressed with Canada meeting its fiscal obligations under treaty.
Mr. Chairman, with the information that we have provided to you in this Committee, we want to point out very clearly that the concept in legal terms and the political areas that are being considered, and the system of colonial structures and systems put in place under the Indian Act have not been accepted by our people. There has been a theory that because of the colonization put in place by Canada with respect to Indians since the early 1800s that Indian sovereignty no longer exists. The documentation before you proves otherwise. We are presently taking control and formally organizing our political rights in Saskatchewan and organizing our Indian institutions. We intend to expand our land and resource space. There has been another theory that because governments fulfill their treaty obligations that Indian lands and resource rights are extinguished. All you are doing, Mr. Chairman, by fulfilling the obligations under treaty is conferring the rights to those resources and those lands and those original rights that we had prior to negotiating and signing treaty.
We have provided you with the structural charts that demonstrate the direction we are going, and if the Committee members are interested we have a very effective lobby force here in Ottawa and in Saskatchewan. We also have people here tonight who can discuss further with you, after questions, the specifics of those institutions and the organization of those political rights.
We understand and recognize that the position of patriation of a Canadian constitution is desired by all Canadians. You ask us, Mr. Chairman, to come in unity. You have demonstrated a lot of problems in your own backyards with respect to the Canadian constitution and the patriation process.
We support the presentations that have been made to this forum by the member organizations of the National Indian Brotherhood and we too make up the assembly of First Nations in Canada and respect those positions that are presented and also the various cultural societies that make up the First Nations Assembly.
Your challenge I suppose Mr. Chairman, along with Committee members, is to do as we have done and rise beyond your own biases, because the time is a serious one for Canada. Canada is at a very serious crossroads and I do not think that you should take it very lightly.
The patriation has advanced Indian government in Canada by 25 years, Mr. Chairman. Anything that we could have done
in our own communities would not have done as much as it has done to bring about the level of understanding with respect to the Indian presence here in Canada. The decade for the 1980s will witness the formal organization af political rights and a more positive image of Indians in Canada and we challenge you and the people of Canada to participate in a one Canada that is going to be a true Canada.
Mr. Chairman, that ends our presentation and we hope that we have answered many of the questions that have been asked before and we hope that we will be able to answer any questions that are put forward to us. We want to thank you again for the opportunity.
The Joint Chairman (Mr. Joyal): Thank you very much, Chief Sanderson. I will have at the end the opportunity to say some words but I would like first, according to our procedure, to invite the honourable Jake Epp to open discussions with our witnesses.
Mr. Epp: Before you recognize me formally for questions, Mr. Chairman, I think possibly in terms of the work of the Committee for the remainder of this evening we should look at that issue first. The presentations obviously are very comprehensive and will need a fair amount of detailed questioning. That being the case, I am wondering how you, Mr. Chairman, are visualizing our work this evening. I do think definitely that a recess should be called, if not for members of the Committee, I think for the staff. The staff has to be here every minute that we are here and we might be a little more flexible even than they are and I would ask, Mr. Chairman, what your thoughts are before we proceed with the questioning.
The Joint Chairman (Mr. Joyal): The honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, Mr. Epp has made my point. I think the witnesses understand that we have perhaps overbooked, if we can use that word, our time today with five or six groups, and the tragedy of it is that this is a very comprehensive brief that has been presented to us, one that in that respect upon reflection would have certainly warranted more time. Because we have tried to accommodate all the groups today we have been here since 9:30 a.m. until I :55 p.m. if I recall without a break; into the House of Commons at 2 o’clock, out of the House of Commons and back here at 3:30 p.m. and; we are now at 7:30 p.m. and we have not only to do justice tci this very, very comprehensive interesting brief that poses a lot of questions, nations within nations, plus several other groups who are also waiting. It seems to me that we might have to be pragmatic about our ability to hear all the witnesses this evening, but I think that is really what Mr. Epp is addressing his questions to and I echo his sentiments.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. Mr. Nystrom.
Mr. Nystrom: I wish to express the same sentiments as Mr. Epp. We have two very, very important groups before us today. We had a very comprehensive document, the one prepared in particular by Delia Opekokew, we have had some very excellent witnesses, and I think in fairness to them and to the staff and perhaps even to ourselves we should maybe consider recessing until 8:30 p.m., have a chance to get a bite
to eat, and then start the questioning after that, if it is all right of course with the witnesses before us.
The Joint Chairman (Mr. Joyal): If I understand well your suggestiion, you propose that we adjourn until 8:30 p.m. and we reconvene to proceed with the questioning so I will have to consult with our services for the other witnesses who were on schedule for 8 o’clock tonight, which are the Canadian Consultative Council on Multiculturalism and at 9 o’clock the Canadian Association of Social Workers. I wonder if members would like to take that into consideration, too, in their suggestions so that we might have the best use of time in accord with those two other witnesses. I understand that we can of course always ask for the leniency and indulgence of a witness to wait because we expect about half an hour, and witnesses have accepted to wait, taking into consideration that members need additional time to complete their hearings with one group of witnesses; but I am open to suggestion.
Mr. Nystrom has just put the suggestion to me that maybe I could have his reply on the point I have just raised so that we might agree on the use of our time, but as has been said by Mr. Epp we have had a very comprehensive presentation, in fact it is the most comprehensive presentation that we have had at this point. We had an opportunity, for instance, and I know of course for instance of the economic aspect of your group in Saskatchewan, I have watched on many TV programs that have put forwad those initiatives, but I know that all the members are not in the same position and we will need some questioning. But I am open to Mr. Nystrom’s suggestion in that respect so that we could adjourn for at least half an hour and come back around 8 o’clock. That is a possibility. I do not know if Mr. Epp would like to consider that, too.
Mr. Epp: Mr. Chairman, I can say half an hour but knowing how things are around this place we will not see a quorum at 8 o’clock.
Mr. Nystrom: How about 8:15 p.m.
The Joint Chairman (Mr. Joyal): Chief Sanderson. I will call your wisdom.
Chief Sanderson: Mr. Chairman, I do not want to take control of your forum here but …
The Joint Chairman (Mr. Joyal): You have suggested to be part of our meetings and I think that you are a full part of our meeting now.
Chief Sanderson: You have other witnesses that are expecting to appear immediately after us and we have taken some of their time already. I know that we have been more than considerate as Indians in Canada to date, but we are not prepared to take up other people’s time even at this Committee level. If the Committee and yourself wish to call us back we have a number of expert Indians witnesses who would be available to deal in depth with questions in January, if that is the preference. We would like to get a fair amount of time on questions and we have some questions of yourselves that have to be answered as well.
The Joint Chairman (Mr. Joyal): Thank you very much. That opens the door.
An hon. Member: It is a very big door.
Mr. Mackasey: And a door that I was hoping to open, for a very sincere reason, not that I am hungry but I do think, Mr. Chairman, that if it were possible we should commit ourselves to inviting our guests back and making it very specific that we will allocate sufficient time in early January to carry on from this moment, because I think they have summarized to a great degree all the issues we have heard from many, many groups and I do think that if we were able to dismiss our witnesses at this stage with the clear understanding that we would be continuing at the first possible moment in the new year with sufficient time it would then make it possible for us to continue with our new witnesses at the time that they originally anticipated.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. President Steinhauer.
Mr. Steinhauer: Thank you, Mr. Chairman. I would like to concur with the Saskatchewan President and his colleagues regarding the extension of the time for hearings, proper hearings to be conducted. I believe that a lot of work has been done in both provinces and certainly we would welcome proper address by the Committee here to our concerns, and what we have to deal with carries a great potential as far as creating better understanding between your Committee amongst yourselves and, generally speaking, amongst the Indian people across the country. We talk about the National Indian Brotherhood and others that have already come here to appear before the hearings and we also are in accord that those were general s.tatements but in our case they are more specific and we would like to deal with them in that manner. So I think it is something that is quite unique to the Committee here for our members, and it is something that is very educational to you.
The Joint Chairman (Mr. Joyal): Thank you very much, President Steinhauer. The Honourable Jake Epp.
Mr. Epp: I think there is consensus. Our guests have been very forthcoming and have indicated they are willing to make themselves available at the beginning of next year.
You will also recall that when we had the NIB before there were questions of a similar nature that could possibly be addressed by the subcommittee and the proposal made by the Committee.
The Joint Chairman (Mr. Joyal): Certainly, and I see a consensus on both sides of the table. That being so, I would like, on behalf of the Honourable Senators Hays and all honourable members to assure you that we will take all the necessary initiatives and steps to see that you are heard in the process of our discussions and exchange of views and questions from all sides of the table early in January.
In closing, I would like to adopt some of the words which were made by Mr. Snow, that we have the opportunity to redress the long litany of broken promises. That is the message that I think we should have in mind and carry with us at this point, to use this very opportunity that Canada has to redress the broken promises and to start anew.
I would like to thank you.
Mr. Snow: Thank you, Mr. Chairman. There was a written submission by Treaty Number 7 in addition to the one I have presented, which I think was distributed. And I wanted to make sure that it had been distributed to the Committee.
The Joint Chairman (Mr. Joyal): I will make sure that it is distributed to all honourable Members of this Committee.
Thank you very much.
The meeting is adjourned until 8 o’clock this evening, when we will be hearing witnesses from the Canadian Advisory Council on Multiculturalism.
The meeting is adjourned.
The Joint Chairman (Mr. Joyal): Order, please. May I request the honourable members to take their seats so that we might proceed with our guests this evening.
It is my pleasure on behalf of all the honourable members of this Committee to welcome the representative of the Canadian Consultative Council on Multiculturalism.
They are Mr. Decore, Chairman, and Mr. Harold Townshend. I understand that Mr. Decore will have the opening statement and after, he will be agreeable and his colleague, to receive questions or comments by honourable members of this Committee.
Mr. Laurence Decore (Chairman, Canadian Consultative Council on Multiculturalism): Thank you, Mr. Chairman.
Perhaps I could start by again telling you who we are. Errol Townshend, accompanying me this evening, is the editor of a newsletter which we produce which is called Cultures Canada. Errol is from Toronto. I am from Edmonton, and I am the national Chairman of the Council.
Mr. Chairman, the Canadian Consultative Council on Multiculturalism is greatful for the opportunity to participate in what we consider to be one of the most important debates in Canadian history.
If we may, we would like to give you a brief description of our Council. The intention of the government to create a council on multiculturalism was announced by the Prime Minister in May of 1972.
At that time he said:
Our desire is to compose a body of persons well qualified to make recommendations to ensure the full participation of all Canadians in the cultural development of this country. The council will assess needs, offer advice and contribute to the good relations of Canadians of all cultural backgrounds. It will be part of the consultative process of government.
Thereafter, in May of 1973, the Consultative Council was created. It is the Canadian Consultative Council on Multiculturalism. The Council is composed of JOO members and it represents almost all of Canada’s cultural communities. It has representation including Inuit, Japanese, English, French, Italian, and so on.
Not only do most cultural groups involve themselves directly in our deliberations but we also travel across Canada trying to get first hand impressions from local communities in the many regions of this country.
Mr. Chairman, when the policy of multiculturalism was announced in October of 1971, part of the federal government’s statement said:
We believe that cultural pluralism is the very essence of Canadian identity. Every ethnic group has the right to preserve and develop its own culture and values within the Canadian context. To say we have two official languages is not to say that we have two official cultures, and no particular culture is more “official” than another. A policy of multiculturnlism must be a policy for all Canadians.
The government, regards this as a heritage to treasure and believes that Canada would be poorer if we adopted assimilation programs forcing our citizens to foresake and forget the cultures that they have brought to us.
All party leaders supported the Prime Minister’s statement . in the House of Commons. The honourable Robert Stanfield, then the Leader of the Official Opposition, told the House of Commons that:
This declaration by the government of the principle of preserving and enhancing the many cultural traditions which exist within our country will be most welcome … What we want is justice for all Canadians and recognition of the cultural diversity of this country.
David Lewis, who was then the Leader of the New Democratic Party said:
It is with deep appreciation of both aspects of our Canadian cultural life, official bilingualism and multiculturalism, that my party warmly supports the principles set forth by the Prime Minister.
Real Caouette, the Leader of the Parti Creditiste, said:
I am absolutely convinced that Canadians in general share the views expressed by the Prime Minister. We want in Canada a truly great country for the people of Canada, for all the ethnic groups in our country.
Mr. Chairman, in reviewing these comments made by all party leaders, our Council concludes that Parliament defined Canadian society as being a. bilingual and a multicultural nation. Thus, ladies and gentlemen, it seems only natural and only logical to include Canada’s multicultural reality in the resolution before your Committee.
The Council is completely convinced that all ethnocultural groups recognize the importance and place of the French language in Canada. Multiculturalism respects the linguistic
status of English and French as defined in the Official Languages Act and in the resolution.
We respect both the historical claims and the present realities on which official bilingualism is based. All ethnocultural communities have a special interest in guarding against the drowning of cultures in what is called the Anglo-American sea. They see the continued viability of the French language as one of the cornerstones of cultural pluralism.
In short, Mr. Chairman, the policy of multiculturalism does not challenge the status of Canada’s official languages but compliments it. By promoting a climate of cross-cultural sympathy and linguistic opportunity, multiculturalism works to establish the prerequisite for Canadian unity in a bilingual and in a multicultural framework.
When Parliament agreed to support the multicultural policy in 1971, the ethnocultural groups were pleased that there existence was officially recognized. Since this policy was unanimously supported by all parties, we interpret that, I think all must interpret that as meaning that multiculturalism was therefore a national policy involving all Canadians. As a national policy and an integral part of the Canadian reality, multiculturalism surely must be included in the Canadian constitution, the fundamental national framework for all Canadians, present and future.
Our Council recommends that a preamble be added to the resolution and that in that preamble a recognition of Canada’s multicultural society be clearly stated. What we are suggesting is not new or untoward, for in the final report of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, which was co-chaired by Senator Gil Molgat and Mark MacGuigan, the following recommendation was made in Chapter 10 dealing with language rights:
The preamble to the constitution should formally recognize that Canada is a multicultural country.
Mr. Chairman, more recently in the Senate Debates, Appendix A, The Constitution, Second Report of the Special Joint Committee, October 1978, the report stated in the section dealing with the preamble and the aims of the federation that:
Further, although we recognize the concept of multiculturalism is implicitly covered by the phrase “equal respect for the many origins, creeds and cultures … that help shape Canada”, we urge that the word, “multiculturalism” should also be included.
The Council fully supports these recommendations and agrees that multiculturalism requires formal emphasis and must be inccluded in the preamble to the constitution.
The Council has searched for the best preamble to reflect Canadian society and we could not find a better alternative than the one which would incorporate the objectives set out in Chapter 6 of the Special Joint Committee of the Senate and House of Commons which we referred to earlier. It says: number one, this is what we should include:
1. To establish federal system of government within a democratic society;
2. To protect and enhance basic human rights;
3. To develop Canada as a bilingual and multicultural country in which all its citizens, male and female, young and old, native peoples and metis, and all groups from every ethnic origin feel equally at home;
4. To promote economic, social and cultural equality for all Canadians as individuals and to reduce regional economic disparities;
5. To present Canada as a pluralistic mosaic, a free and open society which challenges the talents of her people;
6. To seek world peace and security and international social progress.
Now, Mr. Chairman, with respect to the Charter of Rights, our Council supports the general intent as expressed in the resolution. The basic purpose of a Charter of Rights must be to protect individuals and minority groups. Section 1 of the Charter makes it possible to deny fundamental freedoms to individuals or groups when the words:
… subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamenfary system of government …
We join with others who have appeared before you in strongly recommending that that clause, or the wording in that section which allows legislators to over-ride the rights of individuals or groups be eliminated from the Charter.
In our judgment, a Charter of Rights must put some fundamental freedoms beyond the power of a legislature to effect. As Section 1 now stands, rights can be taken away when you need them most-in times of temper and in times of uncertainty.
Therefore, Mr. Chairman, we recommend, in the same thrust of the broad objectives we supported earlier, the following wording for Section 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such limits as are prescribed by Jaw and are reasonably justifiable and humane in a pluralistic and democratic society.
In dealing with fundamental freedoms, Section 2, the Council is concerned that organizations such as the Ku Klux Klan are again burning crosses in Canada, in my own provinces. We believe that the intended meaning of freedom of opinion and expression should not allow individuals or groups to infringe on the rights and freedoms of others. No group should be allowed to propogate hate messages at the expense of any other group.
The Council therefore recommends that Section 2(b) be strengthened in line with Article 19 of the International Bill of Human Rights to read:
Freedom of thought, belief, opinion and expression, including freedom of the press and other media of information subject to the rights or reputation of others.
The Council strongly welcomes the inclusion of Section 15 in the proposed Charter. Mr. Chairman, we applaud the inclusion of this section which prohibits discrimination because of race, national or ethnic origin, colour, religion, age or sex. We would, however, suggest the removal of the word “disadvantaged” from Section 15(2).
Our concern is that having disadvantaged included in Section 15(2) may allow courts to rule against beneficial affirmative action programs. We would then recommend that the subsection be reworded to read as follows:
This section does not preclude any legislative distinction which is justifiably related to some bona fide amelioration of the conditions of certain specified classes of persons.
In this way, Mr. Chairman, the latitude of the courts to determine what constitutes disadvantaged is proscribed, however, allowing for what we consider to be important programs to help certain classes of persons in Canada.
The Council wishes to again inform this Joint Committee that it supports the Official Languages Act or official languages of Canada as proposed in the Charter. We would wish however, to amend Section 22 as follows: Section 22 would then read:
Nothing in Sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is essential to the preservation and development of the multicultural reality of Canada.
Our aim, Mr. Chairman, in this recommendation is not to allow the prevention of valuable programs by government institutions that may deem them to be outside of their jurisdiction. As an example, we would note the present broadcasting by the CBC in the North in Inutituk and other native languages. We would wish that such programs continue because, as well as providing basic information, they promote the preservation of the Inuit and other native cultures.
In dealing with Section 23, concerning minority language educational rights, we wish to draw the attention of the parliamentary Committee to the inherent dangers in the present wording. As this section reads it creates different classes of citizens and it is therefore discriminatory.
The sections create two classes of Canadian citizens, depending on their mother tongue, and two classes of immigrants who become citizens, depending on the countries from which they came. We find a Charter which includes such discriminating features difficult to accept. But at the same time, we find it difficult to formulate Section 23 to remove the difficulties
we have mentioned while trying to encourage the very legitimate demands that Section 23 is attempting to realize; consequently, we would articulate some principles which we believe Section 23 must contain.
The first principle, Mr. Chairman, is that, all Canadians must be allowed the opportunity to acquire proficiency in one of Canada’s official languages.
The second, all Canadians should be allowed the opportunity to acquire a capacity in the other official language. The third, the wishes of provincial legislatures in legislating in the area of language must be respected.
The fourth, all Canadians should be allowed the opportunity to acquire a capacity in languages other than the official languages if they so desire.
We articulate the second principle since we believe that the promotion of both official languages is beneficial to the individual and to a united Canada.
We articulate the fourth principle because of the relationship of language and culture. Although this relationship is not absolute, there is a necessary relationship between language and culture. This being the case, for cultures to be preserved and to be developed, there is a need for language acquisition. We also think that the learning of languages by Canadians would give this country a substantial resource to be treasured, to be valued for international trade and diplomacy.
The Council is particularly concerned with the interpretation and intent of Section 24 under undeclared rights and freedoms, concerning the native people of Canada. The Canadian Indian, nonstatus, Inuit and Metis people currently referred to as the native people of Canada in this constitutional document, historically have been among the most disadvantaged people in our country. In addition to their social and economic plight, they are confronted with the threats to their cultural heritage and identity through processes such as urbanization and mass media.
Our Council urges the Special Joint Committee to be receptive to the recommendations of the native groups. The representatives of the native groups can speak more directly and immediately about their social and economic problems. However, Mr. Chairman, the Council joins with them in sharing their anxiety about the threat that today’s society presents to their cultural heritage.
Culture is a dynamic aspect of our lives. It affects our perception of ourselves and of others. By creating greater appreciation of cultural values, multiculturalism serves as a strong and unifying force in this country. A strong and unifying force in this country. Multiculturalism is not merely a term synonymous with cultural pluralism or diversity, it is the joining together of all traditions which collectively express the reality called Canada, joining together while still maintaining individuality and distinctiveness.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Decore.
I think it has been a very good opening statement to stimulate questions and comments.
I would like first to invite the honourable Perrin Beatty to open the dialogue with our guests tonight.
Mr. Beatty: Thank you very much, Mr. Chairman.
Mr. Decore, let me on behalf of all of my colleagues first of all thank you most sincerely for your presentation. I think it is clear that a great deal of thought has gone into your brief and I think that the concepts which you articulated this evening are very valuable and will be very helpful to us as we do our work in terms of trying to make modifications to the government’s proposals which will make improvements to it.
If I understood, Mr. Decore, your description of the Council, your function is to act as an advisory body. To whom do you report, is it to the Minister of State for Multiculturalism?
Mr. Decore: Yes.
Mr. Beatty: Have you had the opportunity or have representatives of the Council had the opportunity to meet with the Minister of State for Multiculturalism to discuss the recommendations you are making this evening?
Mr. Decore: Yes.
Mr. Beatty: And does the report of the Minister support?
Mr. Decore: I am sorry, does the what?
Mr. Beatty: Does the report of the Minister support?
Mr. Decore: Well, the Council, sir, Mr. Chairman, the Council is the one making the presentation. I am sure, and I am pleased to tell you that we have a degree of independence that we are allowed to give our expressions. There is no doubt that we tell the Minister what our feelings are on these matters and I hope, and I am sure that he does listen, so there is a consulting process involved.
Mr. Beatty: Consulting process … but he did not indicate that he was supportive of the proposals which were put before the Committee tonight?
Mr. Decore: Well, he has suggested to us that we are free to come forward to this Parliamentary Committee and express our concerns and he has not written the report for us, we have.
Mr. Beatty: Yes. What sort of structure did you follow in terms of drawing up your recommendations? Did you strike a subcommittee or how did you arrive at the recommendations you are making this evening, what sort of process did you follow?
Mr. Decore: Well, it is an on-going process. I suppose it starts even as early as 1971 when former consultative councils have made recommendations with respect to a new constitution. This is not a dead issue in Canada, it is an on-going debate, and there has been a great deal produced by this Council and suggestions on what should be included in a new constitution.
We simply followed and participated in that kind of an exercise.
Mr. Beatty: Do you strike a committee to look at this particular resolution and make recommendations?
Mr. Decore: Yes, we did.
Mr. Beatty: So that the committee, a subcommittee made recommendations to the full council and does this report include all of the salient points which were recommended by the subcommittee?
Mr. Decore: No, because there was a subcommittee struck which was active before this resolution that you are dealing with now was submitted, and so some of these suggestions I considered and the committee considered and the Council considered to be no longer effective. For example, we used as one suggestion the possibility of changing Section 95 of the BNA by simply tucking in the words “and multiculturalism”, where that clause reads that there shall be concurrent power with agriculture or in agriculture and immigration with the provinces and the federal government.
We thought it might be interesting to include multiculturalism in that section, but on reflection, and after this document came forward, we thought it was not such a good idea; so that is the sort of thing that was happening.
Mr. Beatty: Have you given thought to recommending that it would be desirable to create a commissioner of multiculturalism, as a possibility?
Mr. Decore: Yes, that and we have given consideration to suggesting to the Minister and to the government that there be a whole new concept of a ministry of culture which would include things like the Canada Council and perhaps the National Film Board, all things that touch our lives
Mr. Beatty: With the report of the subcommittee that you mentioned, would you be prepared to make a copy of that report available to members of this Committee so that as we do our work we could see the full scope of the recommendations that were made and be aware of some of the concerns which the subcommittee had?
Mr. Decore: Well, I repeat, Mr. Chairman, that I think the report that you are referring to is a report that was made up or prepared prior to the drafting or the tabling of this document, so some of the suggestions I think, we think, are no longer applicable.
We are a consultative Council. I suppose the process, Mr. Chairman, is that a request for that document be made to the Minister to whom we report. That is a working document that I considered in the formulation of our end position, the brief that we are giving to you today.
Mr. Beatty: Certainly. Would you have any opjection to the Minister making it available to this Committee if he chose to do so?
Mr. Decore: Well, sir, I am not the Minister, I think you would have to ask the Minister.
Mr. Beatty: I will tell you, Mr. Decore, why I was concerned, and perhaps, Mr. Chairman, I might ask a messenger if
he could give a copy of this to Mr. Decore, perhaps also to other members of the Committee as well.
I want to read to you a memorandum to the Minister of State for Multiculturalism from his Executive Assistant, Susan Scottie, which is dated October 3, 1980, and it is regarding attached letter and report from Laurence Decore, and it reads as follows:
As I mentioned to you, Decore, Arpin and Grodecki have requested a meeting with you prior to the National meeting in Edmonton to discuss their report on the constitution. The report gives a historical background on efforts of previous CCCM’s during the past nine years to entrench the concept of multiculturalism in legislation, such as the immigration bill, the preamble to the constitution and also to provide a statutory base for multiculturalism. The bottom line of the report is that the government has had an opportunity to act on many occasions but has always chosen not to. The Committee’s message is that it is time to act now in order to show Western Canada in particular that the government is not using multiculturalism as a political football.
I think it is important that you read the full report as it is the intention of the executive to raise this issue at the national meeting after discussion with you. If the report gets out, it could prove embarassing. There are three main recommendations on page 10 which request inclusion in the constitution of recognition of cultural diversity in the laws and institutions of government and request the appointment of a commissioner of multiculturalism.
The historical picture given in the report paints a very negative picture of the government’s perceived lack of commitment to the policy. I must agree with Decore, however, that the widely-held view in Western Canada is that the program is only there for political reasons. The perception needs to be redressed. Perhaps the question could be made to form part of whatever western strategies are developed over the course of the next few months.
Attached to Decore’s report is also a paper produced by the CCCM Culture Committee which gives a general statement about multiculturalism being included in a general cultural policy and also provides a catalogue of ideas and suggestions for implementation of future cultural policy.
And it is signed Susan Scott, Executive Assistant to the Minister.
The reason, Mr. Decore, why I was concerned was that obviously this memorandum raises very serious questions about the contents of the report and the findings in terms of the historical perspective, what the development of multicultu-
ralism policy has been in Canada in the past, and also about the reaction of the government to recommendations made by you. You will recall the comment on this, it says:
If the report gets out it could prove embarrassing.
Well, Mr. Decore, I think that if you felt the report was sufficiently subtantive, the recommendations you were making were sufficiently important, as I gather from the letter which is also attached from you to the Minister indicating that you wanted to meet him about these reports to discuss them, and you ended off saying:
Needless to say, the Executive Committee has treated this matter as a priority.
And attached to that is a motion moved by Sylvia Hamilton and seconded by Donald Fortin which says, first:
That the ad hoc committee’s report on the constitution be accepted and adopted in its entirety.
2. That the report be forwarded to the Minister along with the paper Multiculturalism-Next Steps for his immediate attention.
3. That the Chairman and Vice-Chairmen meet with the Minister prior to the national conference to fully discuss the context of both reports.
In view of the fact that the council apparently felt that these recommendations were substantive and important, I was very concerned, then, when I saw this recommendation from the Minister’s Executive Assistant that she was concerned that this report should not be made public lest it be embarrassing to the government, and clearly I think members of the Committee, when your Committee on the constitution, your ad hoc committee made these recommendations, surely it is relevant to the work of this Committee to see whether indeed the government has accepted them and to see whether proposals which have been made by you to the government could be helpful to us in terms of doing our work on the constitution?
Mr. Decore: Well, I can only assure you, Mr. Chairman, that in my discussions with the Minister, in our discussions with the Minister, that he has been very receptive, he has treated the information that we have gathered for him and the opinions that we have given to him seriously. He has encouraged us to come here and has encouraged us to answer his questions. I do not think he has anything to hide. I am here to tell you that, sure, we make statements that suggest to government that maybe they should be moving a little faster or perhaps a little stronger in a certain area, and sometimes I think those suggestions are taken up by the Minister. I know they are.
So we are here, the documents that you have referred to at length are working documents that, again I repeat, that came before the tabling of your acutal resolution. Some of those statements are now obsolete, but they were working ideas that come together in the final position, that is our brief today.
Mr. Beatty: Have you indeed expressed the opinion that the government is using multiculturalism or that there is a percep-
tion that the government is using multiculturalism as a political football?
Mr. Decore: I did not express that, Mr. Chairman. I suppose this is the best way of explaining the position, my view of the situation, that since 1971, when the policy was first pronounced, it served a tremendous advantage, gave a great boom to cultural groups in the sense that people had an understanding, a tolerance of others. I really believe that, that there was cross cultural communication, I could speak to a black and a black could speak to me, and we had much more in common than perhaps both of us thought at the outset.
A lot has happened, a lot of beneficial things have happened since 1971, and now we are simply suggesting that there is one additional step that needs to be taken and that is the formalized step of putting something into this document which recognizes multiculturalism as a reality.
Mr. Beatty: And have you dropped what is referred to in the memorandum to the Minister as a recommendation that there be appointed a Commissioner of multiculturalism, is that still current, is that still a request that you are making or has that been dropped as your recommendation?
Mr. Decore: Well, Mr. Chairman, we are dealing with issues that affect you specifically in so far as the constitution is concerned. We did not put that in our brief. We did not talk about a Ministry of culture, which I hold very dear, I think it is important, I think we should get on with that investigation, but it seems to me that it does not form part of what we are talking about today so it is not in our brief.
There are all kinds of things that we have talked about, centers of ethnic studies, chairs of ethnic studies, supplemental language programs that should be boosted or bolstered. Many issues.
Mr. Beatty: Thank you, Mr. Decore.
Mr. Chairman, I gather my time is probably pretty well up but I want to thank Mr. Decore and I would indicate as well that I will be inviting the Minister to make that documentation available to the Committee.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Beatty. As a matter of fact your time was up but I thought that, considering the importance of the point that you raised, that you needed to go on and complete your questioning with our witness.
Mr. Beatty: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much.
Mr. Lewycky: Thank you very much, Mr. Chairman.
I would like to thank Mr. Decore for his presentation. Obviously a well thought out brief, and there are some of things that you mention in the presentation that are of interest to me.
It seemed that you did dwell quite heavily on the matter of a preamble and you are aware that we do not have, at least in
the current proposal, a preamble, and I was just wondering how strongly you felt about that preamble being included in this current resolution, and then also I was just wondering about how you felt if some of these suggestions you have made about multiculturalism were not included in the constitution, whether you would feel that this would be a betrayal of the 1971 pronouncement of the policy of multiculturalism?
Mr. Decore: Well, the first question, how strong do we feel about a preamble. Mr. Chairman, many children in the United States appear to be able to recite their preamble or parts of their constitution by heart. In fact, because of the influence of television and radio, I suppose even Canadian children can recite part of that constitution and those constitutional documents.
I would like to see something that sets the mood or the attitude of Canadians in defining what Canada is, and I think that the preamble can do that.
I wish that I was a poet and a lawyer that could tackle that kind of problem. It is not an easy one, it is one that is tremendously challenging, and I think is important, and the answer to your question is that I think you should give it serious consideration because of the attitude and the mood that should be created in Canada, a unifying mood.
However, it does not stop there. There are things that we are suggesting in our brief, in the substantive portion of this constitutional document, that we think can also add formalization to that concept of multiculturalism, so I do feel strongly about the preamble. We have told you that, but we have other suggestions for you to consider.
The question of whether or not I would consider a betrayal-your job is not easy, ladies and gentlemen, and you have listened for a long time and you have had a lot of ideas put to you and perhaps a preamble is not easy to deal with, as I have suggested. I do not think I would be betrayed. Perhaps I would feel that I have not been articulate enough in convincing you, or perhaps I would feel that I was not articulate enough in convincing you that something in the substantive portion of the resolution was not included, but I do not think I would be betrayed. I am sure that you will find some answers for us.
Mr. Errol Townshend (Chief Editor of “Cultures Canada”, Canadian Cm1sultative Council on Multiculturalism): Perhaps I might add something to that.
It would appear from the proposals in the resolution that we are moving somewhat away from the established system of government in this country, and yet, as I understand the proposal, we will still have a preamble of the old BNA Act which says that we are a form of government similar in principle to that of the United Kingdom.
So here we are on the one hand going to Britain to patriate the constitution and then we are still going to have a preamble saying that we are like the British system of government, whereas here we are proposing a situation where Parliament would no longer be supreme in terms of its ability to make laws any way it saw fit. It would be restricted by the Charter of Rights, subject, of course, to the interpretation of the courts.
So it seems to me you ought to have a new preamble go with these amendments that you are proposing, otherwise I can see confusion.
Mr. Lewycky: All right, thank you very much.
In your brief you do discuss French language guarantees, if could use that word, in your description stating that you recognize the historical significance of the French language, and there has been some fear expressed that the more you include other languages, that you would tend to diminish the importance or the aspirations of people who might be of French background, and I was just wondering how you would respond to that type of an issue?
Mr. Decore: Well, Mr. Chairman, we are not proposing a concept of multilingualism. We accept, and I emphasis this again, we accept and think it is a healthy thing that Canada is officially bilingual. In fact, I believe that many ethnocultural groups are made stronger by the fact that the French culture, the French language is made stronger. So I do not think there is any fear that the country is all of a sudden going to have a proliferation of languages that nobody can deal with. Not that at all.
Mr. Lewycky: There was one point in your brief where you talked about the fact that multiculturalism and many languages could be a resource with regards to trade and also with regards to diplomacy. I find that a rather interesting sort of idea because I have always thought of culture as being a resource, a renewable resource such as energy, that you have a lot of in Alberta, and I personally, from even my own experience, I know that being able to speak more than just French and English has helped me in terms of travel in overseas countries, and I am just wondering if you could elaborate a little bit on your point about this cultural resource and how you see this tying in to your suggestions for changes in the constitution?
Mr. Decore: Well, first of all, Mr. Chairman, I think there is a self satisfaction that a person gets when he not only can display his dances and his folklore but that he can understand it. If somebody does a rather intricate step, it is nice to be able to read and learn what the history of that step is so that I can impart that knowledge to you. It is nice to look at something but it is nicer to look at it and understand it, and I think language gives us that opportunity.
If you learn Polish, you have the opportunity of explaining to somebody that this is the dance and this is what it means, because you are able to interpret it from your history, from your books.
It is a renewable resource for certain. If I travel to Europe because I have a knowledge, some knowlege of a Slavic language, it gives me an ability to represent Canada, not only feel self assured myself but to represent Canada and tell the world about what my country is all about. I can do that to some extent in Polant or Yugoslavia or Russia or the Ukraine or wherever. Certainly that is a benefit to Canada. When you translate in terms of business, you cannot measure the kind of value that that has.
Mr. Townshend: I think as an illustration of that point perhaps we might look at a situation where Canada was one of the first Western countries to open up diplomatic relations with China but I suspect perhaps one of the reasons why we have not been able to follow-up and capitalize on that is that perhaps not too many Canadians can speak Chinese.
Mr. Lewycky: I appreciate the point as to how you tied in the cultural resource with self image and I think that probably you have mentioned something that maybe has not been mentioned before here, that being familiar with another language enhances our own self image, and we feel a bit more comfortable when we are in another country to know that we are coming across in a way that would be understood by that other country. We feel more comfortable because we have that type of background or cultural understanding or appreciation of the connotation of words and meanings. Is that sort of the idea that you are referring to in that area?
Mr. Decore: Yes.
Mr. Lewycky: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much Mr. Lewycky. The honourable Bryce Mackasey. Mr. Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman. Good evening, Mr. Decore. Could I ask you how long you have been Chairman of the Council?
Mr. Decore: Since April of this year.
Mr. Mackasey: Do you enjoy the job?
Mr. Decore: Yes.
Mr. Mackasey: Do you feel you have the degree of independence that you need from the Minister?
Mr. Decore: Yes.
Mr. Mackasey: I raise these points because I was going to raise a point of order earlier, taking exception to the line of questioning, Mr. Chairman, of Mr. Beatty. It seems to me that if we were in a court of law the judge may have accused him of badgering the witness and I hope that if I address this you might not take it out of my 15 minutes, but it seems to me that there are standing committees of the House where if there has been any impropriety on the part of the Minister that this could be discussed much more fully rather than embarrassing the Minister or taking up the time of this Committee on a matter which at the best has no substantiation.
I want to just clarify, because Mr. Beatty has raised certain concerns, has the Minister at any time attempted to coerce you, threaten you, has he been a big bad Minister, Mr. Decore?
Mr. Decore: Mr. Chairman, I have had the unique experience with the concept of multiculturalism with first of all being the first Chairman of the Alberta Heritage Council and serving a Tory Minister, that was for three years; I now have the honour of serving a Liberal Minister. I have never felt badgered. I have no scars on my back. I have been allowed to express my opinion freely and I think and I know that that opinion has been well received.
Mr. Mackasey: I want to say that I appreciate the frankness with which you drew to the Minister’s attention the apparent feeling in the West that possibly our efforts are really window dressing and that we are not really addressing the whole issue of multiculturalism properly. I think that was the concern Miss Scotti expressed in her letter to her Minister. Am I right about that?
Mr. Decore: That is the first time that I have ever heard of that memorandum.
Mr. Mackasey: I would imagine that there is no particular reason you should hear of it, and I am rather surprised that you were even asked about it. This is a memorandum from an executive assistant named Miss Scotti to the Minister and of course it is becomming one of the unfortunate aspects of political life that these things somehow get dragged into these kinds of forums, internal documentation, advice in writing by an executive assistant in this case to her Minister. It is a deplorable practice but we have to live with it, and I apologize to you if you were embarrassed. At the same time I take the opportunity of emphasizing what you said before, when you informed the Minister of the type of presentation you were making here, some of it quite provocative and beyond the resolution which the Cabinet Minister must have agreed to, and that took courage on your part; but did the Minister attempt when you brought this document here to persuade you to remove some of the things that were in direct conflict, say, with the proposed resolution as it now stands?
Mr. Decore: Mr. Chairman, the Minister has been, and I repeat, and I continue to repeat, that he has been receptive to suggestions that we have brought forward to him; I would be surprised if he did not think some of the things were not critical of his position or the government’s position and perhaps his eyebrows have been raised on more than one occasion but he has not said, Decore, you cannot do this or the Council cannot do that. I am here, we are here to present our position.
Mr. Mackasey: Mr. Decore, if you did not have a degree of independence which you think important, if the Minister somehow decided that independence was not in his best political interests, would you remain in the position?
Mr. Decore: No.
Mr. Mackasey: Thank you. Let us get down to something more important here, your recommendation. I want to say that I too, share your views of Canada. I consider Canada to be a bilingual country and a multicultural country and I am old enough to recall a period in Canadian history when that was not the general impression. For instance, we had a very active witness today or yesterday, I have forgotten, I have seen quite a few good people in the last 48 hours, who was on the B and B Commission and recalled to me that B and B was bilingual and biculturalism and it is significant, a close friend, Mark Rose recalls those days when none of us raised an eyebrow at B and B, very few of us, and I think it is significant that the present Prime Minister was in the vanguard insisting that we recognize Canada not only as bilingual but as multicultural and I think from 1971 on when we brought in this concept, when we gave it some legal status, it has been an unifying force in this
country because most of the groups that I have dealings with, multicultural groups, accept that this is a bilingual country but insist that it be multicultural Has that been your general feeling?
Mr. Decore: Without any doubt. I think the history that you have recounted, perhaps no eyebrows were raised in some circles when B and B first started, there was indignation amongst some Canadians that something that only recognized two cultures could have been proceeding and that indignation was expressed articulately to the government of the day and the government responded by asking the B and B Commission or Task Force to look at the so-called others and book four was prepared.
Mr. Mackasey, the most telling proof of your comments would appear to be in a newspaper article I read today which was in yesterday’s Sun written by a gentlemen by the name of Douglas Fisher.
Mr. Mackasey: I have heard of him.
Mr. Decore: Who they tell me at one time did not think that there was much to this concept of multiculruralism. Maybe that is wrong on my part, but that is what I was informed, but who states in this article in a recent poll of Canadians almost 80 per cent when asked what they thought Canada was expressed it in terms of a multicultural country.
Mr. Mackasey: He was reflecting the Canada West finding. I did not mean to be rude and cut you off but I want to congratulate you on your referral to section 22 because I think that we have failed in this Committee to emphasize to particular groups that Section 22 is a clause that recognizes the need for Canadians to learn more than two languages. Section 22 is an attempt to say that nothing in this document, nothing in this resolution proposal, is designed to discourage the problems that have gone beyond the teaching two languages and you have suggested wording to make that even more strong. Would you like to give some capsule comment on that.
Mr. Decore: Well, there are some examples in Canada ofperhaps the best example I can give you is one involving a conference that I was recently at. Somebody asked a CRTC official why Gaelic and I think it was Ukrainian could not be used on air on CBC. The Gaelic program in Nova Scotia was on for some 20 years and then was pulled off. If you look at the preamble of the Broadcasting Act it would be one that I would interpret broadly enough to be able to include Gaelic or Ukrainian.
The response of the CRTC official was that because the Official Languages Act existed there interpretation became much narrower and therefore Gaelic had to be taken off and Ukrainian had to be taken off. Now, that same official says that if there is some kind of a formal recognition of the concept of multiculturalism, and I think this does that, they would not have any difficulty with keeping Gaelic on the air.
Mr. Mackasey: That is the purpose of Section 22. Now, let us go to Section 23 because there you have on page 11, as one of my learned colleagues pointed out to me, you have a little bit of a contradiction. Let us go to the third item you have,
The wishes of the provincial legislatures in legislating in the area of language must be respected.
I want to say as a bit of a preamble what we are trying to do here is provide the basic framework. I really hope for instance that in the next 24 months, presuming that we will have a resolution back or constitution back with an amending formula, the one that is included or one that we can come to through some negotiation over the 24 months, that the Premiers and the Prime Minister of the day will sit down and really build on what we have here, include the preamble which we all think is needed but which is difficult at this moment, broaden the section on rights and on multiculturalism. Really what we are doing is attempting not to be flagrant in our invasion of provincial jurisdiction, and you express that, and that leaves me to the wording of Section 23 because if Section 23 was appropriately written providing freedom of choice of all Canadians to be educated in the two official languages or any other, it would be in direct contradiction with Bill 101 in Quebec and Bill 101 in Quebec is supported by the majority of French speaking Canadians even though it restricts their own rights to be educated in an English school system. So you can see the difficulty and the sensitivity with which the federal government has moved, and the wording of Section 23 simply reflects what the 10 Premiers arrived at in their meetings at St. Andrews and again at Montreal.
Mr. Townshend: But of course it does have the flaw that it does discriminate against Canadian citizens in at least three different ways and that is not something …
Mr. Mackasey: And we are looking at the wording and the fact that you have mentioned it is useful. I am simply saying that unless there is total freedom of choice it will discriminate against somebody, that person, under whatever formula we adopt, that does not have that freedom, so there must be an element of discrimination.
Finally, I know that my time is just about up, Mr. Chairman, I just want to say that I think you have been a refreshing witness. It is obvious that you not only enjoy your job but you have your dedication to a multicultural society. I think you probably know that one of the favourite authors of President Kennedy was Fark, an anthropologist, who took our native peoples, our aboriginal peoples for a study in some of the books that President Kennedy read so passionately and he made an observation which I think you made in your own way that there is a Canadian culture evolving in this country and it is a reflection of all our cultures, not only the French and the English and the aboriginal people but all of the other wonderful people that came here. I think the point that Fark makes is fascinating, that it is impossible to determine what the main culture, the Canadian culture will retain or reject as it comes into contact with the other cultures.
I just hope that you keep fighting the good battle for multiculturalism and do not worry about internal memoranda. Just keep provoking the Minister into action.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. Mr. Rose on a point of order.
Mr. Rose: On a brief point of order, one of the witnesses was about to tell us before time ran out the nature of the three kinds of distinct discriminations having to do with language legislation. Could we allow him just to complete his remarks on that before we move to the next witness?
The Joint Chairman (Mr. Joyal): If the witness is so agreeable, I would certainly welcome the answer.
Mr. Townshend: Of course Section 23(1) talks about persons whose language learned and still understood is English or French, so that is one category. The second category is, within that category are persons whose first language learned and understood is French or English, we get into Subsection (2) which really talks about pre school children and others so that is a second form of discrimination. The third form I think is that in terms of the mobility rights in Subsection (2) the person whose language learned and still understood is not English or French does not acquire any rights in mobility. So I think that is something that ought to be very carefully looked at, and bearing in mind of course the question of the wishes of provincial legislators, which we have underlined.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Townshend. Mr. Oberle.
Mr. Oberle: Mr. Chairman, I would like. to begin with the concluding remarks of Mr. Mackasey in the same positive note. You have been a very important witness before this Committee and you, Mr. Decore, of course know my feelings with regard to the important work that you are doing and how important I think it is that you are before us here tonight.
The last time I had the privilege to say something before this Committee I spoke before Mr. Mackasey and he accused me of being partisan and belligerent. I hope that I will not offend his finer sensitivities tonight by appearing to be badgering you.
I would like to ask a couple of brief questions with respect to the document which my colleague has tabled.
First of all, you said in your letter of October 2 to the Minister you requested a meeting with him to discuss the report of an ad hoc Committee on the constitution.
First of all, did this meeting take place?
Mr. Decore: Yes.
Mr. Oberle: As you may recall, you and I had a conversation by telephone on November 21, and at that time you were in Ottawa. At that time you did not know whether the Council would appear before the Committee.
You will recall that I was quite upset about that, and I made a very strong plea to you over the telephone that the Council should, indeed, appear.
Now, November 25 was precisely four days before the deadline for you to submit your brief to the Committee.
You will recall at that time you thought it might be a good idea if I appeared before the Council on that weekend, the Saturday or Sunday to put the concerns I had expressed to yo over the phone to the Council so that you could make up your mind whether or not you would appear.
The question is: had you met with the Minister before or after November 21? Was the Minister indeed present at this meeting over the weekend on the 22 and the 23?
Mr. Decore: Well, Mr. Chairman, I suppose I could answer by saying that a consultant of Council finds itself in a rather unique position.
Unlike the ethnocultural organizations which have appeared before you already, they do not have any difficulty in coming before you and presenting their views.
The terms of reference of our Council are that we are an advisory council to a certain person, that being the Minister of State for Multiculturalism.
So that there is a sort of line or chain of communication.
I suppose that some people-and there are some people in our own Council-who would say, “Where does that chain end? Does it end at the Minister, or where? Do we have the right to come before this kind of Parliamentary Committee?”
Those things were discussed within our own Council and with the Minister.
Mr. Oberle, I am very pleased to be here today and I am pleased that the Minister has encouraged us to be here to express our opinions.
I do not feel in any way muzzled or shaken or being held back in any way.
Mr. Oberle: The way I see you sitting there speaking as freely as you do I tend to agree with you, and I compliment you on your courage and conviction, not that I think your are in any imminent danger for being here.
But, nevertheless, I do find it curious that all of this happened, and on November 25 your thoughts about the constitution which emanated from the study of the ad hoc Committee were very well fixed in your mind, yet you did not know at that time whether you would be appearing before the Committee.
You did say, in your testimony, that since you became the Chairman of the Multicultural Council in April, your relationship with the Minister has been one of cooperation and support and whatever.
So, were you in any way surprised when the bill was laid before the House, having made all these far reaching recommendations with respect to the appointment of a Commissioner of multiculturalism, a Ministry of Culture-and I agree with you that these kinds of things would not lend themselves
to this bill; certainly, your thoughts with respect to entrenching or giving recognition to the ideals of multiculturalism, the acceptance of history and tradition which were inherent in the earlier appearances of Ministers in 1971: were you surprised that there was no reference whatever in this bill, despite all the recommendations that you and your Council of 100 good Canadian citizens from all parts of the country have made to the Minister?
There was no reference at all even though you had said in your earlier testimony that the Minister had always been very receptive to your ideas.
Were you somewhat surprised or disappointed and disappointed and did you express your feelings to him?
Mr. Decore: Well, I was not particularly joyful about the fact that multiculturalism was not in some way reflected in that document.
But is that not what this whole process is about, that you are here, I am here, for you to listen to people like us and there after to make recommendations to Parliament?
I think this is a terrific process.
Mr. Oberle: Yes, but to take you back to the question, you had direct input to the people who drafted the legislation or the resolution that this Committee is now trying to improve, and to study and to assure that all legitimate interests and aspirations of Canadians from all different sectors of our democracy are protected.
So you had direct input and you must have been-I would have been-and I might ask at this stage, am I badgering you at this point? Am I doing okay?
Mr. Mackasey: When you are I will let you know.
The Joint Chairman (Mr. Joyal): Mr. Oberle, I think you should address the Chair if you are seeking such an opinion.
Mr. Oberle: That proves my naivety, Mr. Chairman, and I apologize to you.
So, I am still saying I am somewhat surprised at, even though you had direct input, you have been assured of the Minister’s co-operation and acceptance of the idea of the consultative body, yet nothing in this resolution makes any mention of the term “multiculturalism”.
Mr. Townshend: Of course, one of the problems is where to put it, that is why we are here urging you to have a preamble. There is no preamble to this particular resolution. That is why I thought it would have appeared.
In a sense, you could say we are disappointed that there is no preamble.
Mr. Oberle: But you are making other recommendations as well. Yours is one of the few brief which makes recommendations as to how to better draft some of the sections of the resolution and you are embracing the word “multiculturalism”
in several sections and you make some very significant recommendations.
So that this is not just in the preamble, but in the sections themselves, that is where you are making very important recommendations, and I hope, indeed, the Committee will find it, in their wisdom to make these changes on behalf of the cause that we both support.
May I ask you, sir, again talking about this report of the ad hoc Committee, what in it could have been so embarrassing that it would not lend itself to the study of this Committee?
Mr. Mackasey: A point of order, Mr. Chairman. There is nothing in the document which was circulated which indicated that the witness thought that the contents were embarrassing. Those were the observations of the executive assistant.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey.
Will you conclude, Mr. Oberle, shortly?
Mr. Oberle: Yes.
Rather than talking about any components which were embarrassing, may I ask you who made the final choice and when was the choice made as to the kind of recommendations which were in the ad hoc Committee report, which one of those recommendations should be put into your brief and which of these recommendations should be left out? Who made that decision and when was it made?
Mr. Decore: The final brief, Mr. Chairman, is substantially different from the ad hoc Committee’s report.
I have already outlined one of the suggestions we made to the Minister which I now think was unworkable. At that time I thought it was workable, but now I think we were wrong in that belief.
When you brought forward this document, again, I repeat, sir, this document was not yet tabled.
We were not able to respond to this resolution. We were simply setting out concerns that we thought existed in kind of a global way of complete constitutional package which would come forward.
Well, a complete package did not come forward. There are three or four specific issues that you are dealing with. So we went back to the drawing table and used that document as a working paper for a new position and another document called Multiculturalism, the Next Step and we had an ad hoc Committee on the constitution bringing forward other suggestions, and we went to an expert on constitutional matters when we knew what this was and asked him for input, so we collated all of these things and looked at it again and tried to interpret what the political mood of the country was and came forward with that today is our brief.
So there is nothing sinister or hidden. It is part of the process of developing a position, and I feel quite comfortable.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Oberle.
The honourable Jake Epp, and I would like to remind honourable members that we have over spent our time and another group of witnesses is waiting in the room.
The honourable Jake Epp.
Mr. Epp: Thank you, Mr. Chairman and I will try to follow your admonishment.
I am pleased you are here, Mr. Decore. I am going to restrict myself to only one concept.
I personally feel that the consultative Committee over the years has done a good job.
I need look at no other evidence than members from my own riding and the contribution they have made.
I would like to spend a minute with you on this. I think-and I agree with you-I see society evolving and you cannot necessarily do today what you theoretically would like to do because of other pragmatic problems. I think that is the essence of government to a great extent.
In 1971 the declaration-and Mr. Mackasey used the phrase “gave it legal form”; I think, in fairness, it did not give it legal form in terms of a statute, but I gather that this is the policy; and we have come some way since 1971 in terms of the recognition that a country is more than simply economics or a geographical area or even numerically people.
There are more matters which keep us together.
I thought-and I say this frankly to you-that our first opportunity to give it some legal effect was in the Immigration Act, because at that time we had a statement of purpose and I thought the Immigration Act was the best place to start, because if immigration does not enhance multiculturalism, what government policy is better suited to do exactly that.
We failed at that time to convince the government-and I do not want to thresh old straw. But we missed an opportunity, looking back on it in that that was not done. Now I do not wish to miss this opportunity.
I say to you quite frankly that I would like to see the concept of multiculturalism enshrined in the constitution, and I think even that concept would have to be evolved somewhat, even once it was in the constitution in terms of what it really means in our future together.
What I am interested in-and I have stated pretty clearly the way I think we should go, and having some responsibilities in that area from this side-what I would like to know from you is this: do you feel we have now reached the point where other people, such as this present government as well–do you have the feeling now that there is enough of an awareness through the work of this Committee and the government itself, that collectively, jointly, we can get that concept put into our constitution as we amend it?
Mr. Decore: Mr. Chairman, we had a unique experience in May of this year. Our Executive Committee travelled to St. John’s, Newfoundland. For two days beforehand, I and another gentlemen travelled around Conception Bay and stopped at some of the fish plants and talked to the people.
First of all, I did not know very much about Newfoundland. That was the first time I had ever been there. When somebody told me that there was a unique culture, a Newfoundland culture, I discounted that. But I am convinced that there is. I think it is a tremendous culture and a most interesting kind of lifestyle.
I found it was closer to travel to London and to Paris from St. John’s, Newfoundland, than it was to go back to Edmonton, my home. That is kind of earth shattering. I suppose I should have known that from my history. But it was then that I came to the reality of that fact.
Many people in Newfoundland did not even know that there was 700,000 Canadians of Italian origin living in Toronto.
Most Albertans do not know that there are 500,000 or 600,000 Newfoundlanders living on an island with a distinct culture.
Many Newfoundlanders do not know that there are some 600,000 Canadians of Ukrainian origin living mostly in Western Canada.
What I am trying to say is that even I have not been able to articulate the concept well enough for Canadians to fully appreciate and realize how immense this country is and how wonderful it is.
So, there are a lot of things which have to be done. Our Council was trying to do some of those things and putting it into the constitution is one of the important aspects.
Mr. Epp: Do you feel we have arrived at the stage where we can now convince a sufficient number of people, both in government and society that it is important to do that?
Mr. Decore: There is just a little step to take.
Mr. Epp: Thank you.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp.
Mr. Hawkes: Mr. Chairman, I am looking for some clarity.
Mr. Mackasey usually triggers my thought patterns. He used the word “attempt” and also “tried to do”.
Mr. Mackasey: I am listening intently. I want to hear what you have to say, first.
The Joint Chairman (Mr. Joyal): Mr. Hawkes, even though it is getting late, Mr. Mackasey is not asleep, so any allusion to him will provoke an immediate reply.
Mr. Hawkes: The clarity relates to some of your wording. I want to make sure I understand. On page 11 you are essentially saying that Canadians should be able to study in English, French and other languages. It is the word “allow” that I would like a little bit of understanding about.
Are you saying that we should not have anything in the Charter that would or could be interpreted as disallowing, or do you have a more affirmative goal in mind where things in
the Charter should clearly support the learning of multiple languages?
What is your sense of the world “allow”? Is it more in terms of affirmative action?
Mr. Decore: I think Section 22 gives a lot of help. The suggestions we have made for Section 22 flag it for the attention of the federal government and for the attention of the provincial governments, that they should make available opportunities for those people who wish to learn heritage languages to do so.
We have some tremendous examples in our country: Manitoba, Alberta.
Alberta has a system whereby English and Cree and English and Hebrew and German and English and Ukrainian are facts of life.
We can now benefit from those experiences. It is not some – kind of foreign idea. We think our suggestion in Section 22 reinforces that kind of positive feeling.
Mr. Hawkes: It is an enriching concept, and wherever we could do that that is the kind of thing you would like.
Mr. Decore: Yes.
Mr. Hawkes: Now, in relation to Section 15(2), the antidiscrimination clause, it starts out with the word “disadvantaged”, and you have changed the basic sense of that, using the word “ameliaration”.
The difficulty I have relates to briefs we have heard on more than one occasion, but certainly earlier today, where we have had testimony to the effect, from separate school boards, for instance, that the antidiscrimination clause on the basis of religion, coupled with Section 15(2) dealing with the disadvantaged, still might make it impossible for them to run the kind of school system which teaches the values and the religions that they would like.
I suggest to you that in some programs which exist today in terms of multiculturalism, we do not need to ameliorate something, because we would have difficulty proving disadvantage and yet as a society would like to provide support for those activities; and the basis for involvement in those activities might relate to religion, sex, age and so on.
I am wondering if that is a thought you have not had, or whether you would support groups who have been here earlier and who want some sense of not having something in the Charter that would stop enrichment of that kind of diversity in terms of schools?
Mr. Townshend: I think that perhaps you may be misreading it. We are not comparing the word “disadvantaged” with the word “amelioration”.
We are taking out the word “disadvantaged” and substituting certain specified classes of persons, because we fear that by putting in the word “disadvantaged” the courts may use that as a way of limiting or determining which categories of persons these particular affirmative action programs should help.
That is the reason why that has been suggested there.
Mr. Hawkes: If I were to substitute the word “enrichment” rather than “amelioration” would I be speaking to the sense that you want to leave with us?
Mr. Townshend: I do not think that particular word would fit, because you are talking about enrichment of the conditions of certain specified classes of persons.
That is not what we are really aiming at with the section. What is being aimed at is an attempt to give somebody an opportunity to at least come to the starting line, so that there is equaling of opportunity in terms of access to jobs and that sort of thing. That is what that particular section is aimed at.
Mr. Hawkes: So you do not have a concern about going beyond the starting line, you want the things to come to the starting line?
Mr. Townshend: Yes, and after that the people will be on their own.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes. Thank you very much for your co-operation.
Mr. Decore, Mr. Townshend, on behalf of the Honourable Senator Hays and the honourable Members of this Committee I would like to thank you very warmly for your direct answers to the questions as they were put to you by the honourable members of this Committee, and I would like to thank you especially and to commend you for your brief, and I would like you to extend those thanks to the other members of the Consultative Council.
I think that your brief is very effective and I am really certain that all honourable members of this Committee will not miss the opportunity to make the next step that you have called on us tonight to do.
Thank you very much.
Mr. Decore: Thank you, sir.
The Joint Chairman (Mr. Joyal): I would like to call now to the witness table the representatives of the Canadian Association of Social Workers.
The Joint Chairman (Senator Hays): Members of the Committee, on behalf of our Joint Chairman, I should like to introduce Dr. Richard Splane, who is the President of the Canadian Association of Social Workers.
Dr. Splane, I would like you to now introduce your colleague and then make an opening statement so that the members of the Committee may question you.
You may proceed.
Dr. Richard Splane (President, Canadian Association of Social Workers): Thank you very much, Mr. Chairman.
It is a pleasure to be here, a pleasure to see the enduring constitutions of you constitutionalists in that you are still prepared to hear yet another delegation at this hour of the day and this day of the year.
I do wish to introduce my colleague, Gweneth Gowanlock, the Executive Director of the Canadian Association of Social Workers, who is going to give you a little background on our organization and then she will be returning the floor to me in a moment.
Ms. Gweneth Gowanlock (Executive Director, Canadian Association of Social Workers): Thank you, Mr. Splane.
Mr. Chairman, as I would reflect the remarks of Dr. Splane, we welcome the opportunity to be here. My introductory remarks will be brief.
The Canadian Association of Social Workers is a national professional organization of largely a voluntary nature. It is a federation of 10 provincial and one territorial association of social workers, professional social workers. It is an organization that we founded in 1926 and our association represents at the moment through our federated members about 7,000 professional social workers.
The Canadian Association of Social Workers is one member internationally of the International Federation of Social Workers and, as you may know, we have included with the written material brought before this Committee a seven page document called The International Policy on Human Rights. It was prepared for our international federation of social workers recently and adopted by the Biennial Conference of the International Federation in Hong Kong this year.
Its policy on human rights we see as a useful reference document that the Constitutional Committee might wish to take into consideration in its deliberations.
Also, we have included the policy because it explains in part the philosophy, values and parameters of our profession. One portion of the policy explains it in this way and I will quote one paragraph:
The social work profession is responsible for working to oppose and eliminate all violations of human rights. This responsibility must be exercised in the social workers practice with individuals, groups and communities in the role of an agency or organizational representative and as a citizen of a nation and the world.
The special knowledge and understanding which is part of the education and training of the professional social worker creates an additional responsibility to society to educate others to respect the worth and individuality of all people and also to the necessity for the prevention of violations of human rights. Human rights art those fundamental entitlements which are considered to be necessary to the development of each personality to the fullest capacity.
Our association has several basic objectives, encouraging high professional standards for our profession of social work, promoting and developing activities to the strengthening and unification of that profession, publishing materials et cetera, but the thing that brings us to the Committee today, the purpose which relates most particularly to our appearance, is the research and study and taking action on issues of social welfare.
In introducing Dr. Splane, my colleague, I want to say two things, that Dr. Splane to our association as president and to the work that we did in preparation for this Committee a special kind of experience. He is currently professor of social policy at the University of British Columbia School of Social Work, and acting dean of that school.
Previously he has been a public servant in the federal government, Department of Health and Welfare Canada, and has served on a variety of international committees which brings a perspective to our work and his remarks this evening.
With that I will turn the microphone over to my colleague, Dr. Splane.
Mr. Splane: Thank you.
Mr. Chairman, I want also to be brief in order to allow time for questions on the three or four approaches that we have made to the resolution that you are dealing with and the piece of legislation that is associated with it.
Our brief in total was less than three pages and we make the point very early in it that we do not wish to reiterate positions that we know have been made with eloquence and force and persuasion by others who were here before us.
We note in it, by way of illustration of the positions that had impressed us, the position of the Chairman of the Human Rights Commission of Canada; we could mention now the submission that was made a very few days ago by the Canadian Council on Social Development; I expect had we heard the position taken earlier today by one of the Indian associations that we would have wanted to identify ourselves, if not with their constitutional position, with the way we put it in our brief that we feel that we would like to see constitutional arrangements affecting Canada’s native people that would enhance their rights because as Canadians I am sure we are not proud of how the native people of Canada are making out under the existing constitution.
We pick out of the proposed act three sections for special consideration. One of them is the very first one, which I gather has been referred to many times, Section I, and the position we take there is that it is not good enough to allow for the possibility in the future of our legislatures acting, in times of stress, in enacting, as there are instances in the past they have done, that fall short of our highest ideals.
We want to prevent what I found in a document I was reading on the plane from Vancouver today, we want to prevent what my colleague at the University of British Columbia, Dr. Keith Banting, has described as the restless search of governments for public applause, and that restless search of governments for public applause has on occasion caused them to take actions which fell short of the ideals on human rights that they normally and over the long run would like to see sustained.
Therefore, without attempting to suggest what the wording should be, we feel that Section I, if it is not dropped, should certainly be redefined in some way which would meet that point.
There are two other sections and I a’m going to go to Section 15 rather than Section 6 because I want to make our point on Section 6 with particular force.
We do have two points about which we think that Canadians should be concerned about and the constitutional docu-
ments ought to take into account, and we mentioned some of those.
A different type of concern is that while Section 15(2) refers to affirmative action, the possibility of affirmative action, we are somewhat concerned that it might be struck down by the courts and prevent certain types of selective or categorization that may be required. I think I can speak for social workers generally as being strongly in support of universality, universality in income security and over time, universality in social services, but the road to universality has to be by various forms of selectivity and categorization and specialization and affirmative action, and we wonder whether the terminology in Section 15(2) provides for that, so we raise it for the consideration of this Committee.
On Section 6, the mobility section, and I was interested in hearing it discussed earlier this evening, we have particularly strong feelings. We do not feel that the subsection of that act which makes the mobility principle, which we strongly endorse, subject to, and I quote, any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
We think that that is a dangerous provision. Some of us who have been in the social welfare field for many years remember what the situation was in the 1930s, not only in the 1930s but in the 1940s and 1950s, the situation was deplorable in terms of provincial barriers. A great deal of social work time was taken up in dealing with residency requirements and sending people back across borders and the like.
The action taken by the Unemployment Assistance Act in 1956, 1957, was the first measure which effectively began to outlaw that practice and it was followed up by the Canada Assistance Plan, which makes any province which signs the agreement under the Canada Assistance Plan must not make residency a condition for assistance.
What we would fear is that if a constitution came back with this kind of provision in it, that that would weaken that piece of legislation.
We are at the same time very concerned about the fact that it now exists, that it takes 90 days for one to achieve entitlement under the medical care program and we deplore that and feel that that should be removed. So our suggestion about Section 6, Mr. Chairman, is that the section that I have just read should be struck out of the legislation.
The final point that we come to in our brief has to do with the division of powers respecting social welfare and it may be said, “well, that is not really dealt with in this legislation,” and that is precisely the point. We know why it was not dealt with. It was not dealt with in the discussions during the summer for the very understandable reason that differences on social policy was the grounds, was the stumbling block in relation tq the long constitutional endeavours that were made between 1968 and 1971. The final conference, federal provincial conference on the constitution in 1971 broke down on the question of social powers and so it was perhaps wise of the Prime Minister and of the other First Ministers to exclude that from
the summer’s discussions and from this constitutional document.
However, from our point of view as social workers, we want to draw very forcefully to your attention that this question of how the powers relating to the constitution, relating to social policy, will be dealt with when this document comes back, when the constitution is patriated with or without an enshrined Bill of Rights, how that question is going to be dealt with because it is our view that what we are talking about, which is social security, is one of the most basic of human rights.
If we think back to the days of World War II and the postwar period when human rights were being talked about, the right to security was foremost amongst them; because we have moved beyond the times of poverty that were then more common in this country we seem to have somewhat lessened our concern, but it is not with justification that we do that.
Now, what is it that we think needs to be done relative to the division of powers? Here we come down for the following: we feel that exclusivity, giving exclusive jurisdiction to either level of government in either the matter of income security or social services, is the wrong principle. This goes against, of course, a tradition or at least a reading of the constitution that has held for many years that social services belong exclusively to the provincial jurisdiction. That is not historically supportable since World War II, since the federal government and the provinces have collaborated in a variety of programs, the medicare programs, the hospital care programs, unemployment assistance plan, which plan having welfare services included in it which indicates that the provinces and the federal government strongly felt that social services was a shared responsibility, but the federal government has no right to say to the provinces we would like to collaborate with you or we would like to set standards in these matters relating to social services because the reading of the present constitution has not made that possible.
Therefore, when Emmett Hall completed his recent report, which was excellent in the central matters that he had to deal with, access to Medicare and opting out and the like, it was very weak in relation to how one would complete the remaining part of a comprehensive health insurance program in Canada, and it was weak because he knew of no device under the existing constitutions to get the remaining parts of the health insurance program put into place other than the federal government offering once again a shared cost program which would be of course on a take it or leave it basis by the provinces with certain conditions attached.
The present constitution, then in giving social services exclusively or appearing to give social services exclusively to the provinces is the wrong principle, and what we are proposing in this document is that the principle of equal powers of concurrent powers, with paramountcy for the provinces in relation to social security because that would make sense, but a king of division of powers which would not exclude either level of
government in relation to these important matters of income security and social services.
Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Hawkes, followed by Mrs. Mitchell.
Mr. Hawkes: Thank you, Mr. Chairman.
I would like to welcome our witnesses and it is part of our custom to declare a possible conflict of interest and, as the witnesses know and maybe all members of the pannel do not, but I have spent most of the decade of the 1970s in a university, teaching the people who make up a significant part of your membership. Several hundred passed through our faculty during that time. So the thoughts and ideas that are in the document are perhaps a little more familiar to me than they might be to most, who have not had the opportunity to have that kind of experience.
I have five questions, really, and hopefully, in the 10 minutes, we can cover the questions and the answers.
But on the first page you indicate that you regret that there was not more time:
made available for submissions to the Committee-time our Association would have used to consult our membership more fully than has been possible under the present constraint.
And my question around that is really: what kinds of differences do you think that might have made to your brief and, specifically, do you think you might have been able to deal with possible consequences of a larger number of the sections, of the 59 sections?
Mr. Splane: Mr. Chairman, I expect we are no different than many other groups in Canada that we did not address ourselves to these questions of the constitution over the period of years that we might have. I think we are all somewhat conscious, for example, that 10 years ago one of these documents, developed in the 1968 to 1971 period, was called A Charter of Human Rights for Canadians.
We did not seriously, anymore than any other groups, address that question for the decade when we might have.
So, had we been given, let us say, had we known that there was six months in which we could address this question, it is entirely likely that we would have been able to send out to our membership questionnaires which would have invited their opinions on more of these questions than we were able to do so.
May I just, while I am answering that question, Mr. Chairman, say what the authority is for the positions that I have taken. The authority is twofold: it is based on the policy positions that the Association has developed over the years-I am holding up a document which represents, which brought together those policy positions over a period of years ending in 1972. I expect that if we could assemble the documents in the last eight years, it would be even more compendious than this. So that is one source that I looked to to find out how we could address these questions.
The other was to consult with the Executive Committee on November 24 of this year, representing persons from each of the five regions. It is on that basis that we were able to take the positions that we have done in this document.
Mr. Hawkes: Okay. Thank you. Five regions; sometimes around here people think of four but I presume British Columbia is a separate region.
When you deal with Section I, you ask for it to be taken out of the Charter because you feel that at a time of stress or crisis, it could be a dangerous kind of clause and could be used by a legislature at a particular point in time to take away rights and freedoms, to modify them significantly.
I want to ask you, from your knowledge of human behaviour generally, the kind of material that you teach, if you would agree with the assertion we have had from other groups that Section 42 which is the referendum provision, a public vote on a particular clause, would be as dangerous in a time of stress and crisis. Do we have a phenomena of mass behaviour which might, in fact, be a dangerous thing to tap at a moment of stress and crisis for a population and, if you do, would you have concern about that remaining in the constitution?
Mr. Splane: Mr. Chairman, I have not given a good deal of thought to that, that would be a referendum on a constitutional question-whether feelings run high about constitutionsperhaps they do. And perhaps there is a danger in it. I had not perceived the danger, nor do I think that the members of our Association have given it any thought.
Mr. Hawkes: There is such a phenomena, though, of mass behaviour which can be tapped in certain circumstances and is very compelling, although transitory, is that … ? Okay.
On Section 6, the mobility rights part, as I understand your brief, in terms of what is before us, that Section 6(3)(b) is what you would feel to be the most dangerous part of the resolution as you read it in terms of the populations that you have concerns about as a professional; that is the part of the Charter which could eliminate universality, universal access for people to social services. That is your concern with it. And in fact, you want to go the opposite way. Is that right?
Mr. Splane: No, that is not what we say. We see universality as the ultimate goal. I think social workers have been working for universal programs, incomes security programs and universal programs as soon as they can be mounted and staffed and financed in a wide range of social services.
All we recognize-we do recognize, however, that it is some time before that goal will be achieved and, meanwhile, we would be concerned that a court might make it, might rule out the possibility of some special group-the aged, for example-being helped in a special way that was necessary in their interests.
Mr. Hawkes: Okay. If I may just follow up on that for a second. If the court rules that you could not use age as a discriminant for defining a senior citizen-nowadays we tend to define them as 65 years of age and over-what are the social policy tools that you are left with? Is it possible then
that if you wanted to deliver money to someone 72 years of age, say, that you would have to do it on the basis of a means test, if they take age away from you? How could you categorize people; how could you use that selectivity if the courts took age away?
Mr. Splane: If it were a question of special income support, you might be left with, indeed, a means test or an income test which would have general applicability.
Mr. Hawkes: That would, I presume, not be a welcome step to your profession; that would go counter to the direction that you really want to go.
Mr. Splane: Well, Mr. Chairman, there is a longstanding movement, longstanding support by myself and by, I think, the majority of social workers who have supported universal income support programs because of the stigma involved in means testing, particularly in the old means testing, and some of the present needs testing. It is not impossible to have programs using tests of that kind, which are free of stigma. The income tests that are used for the guaranteed income supplement are, I believe, an example of stigma free income testing, and that is a phenomena which conceivable could make income tested programs in the future, as they are now, but more widely spread in the future less undesirable, to make selectivity less undesirable than it has been in the past.
Mr. Hawkes: Okay. My last question relates to the thrust of the last part of your brief where I think you are telling us that to create a sort of fairer world, a more socially secure social security world, that the problem in Canada today is the fact that the federal and provincial governments have not got their act together relative to the sharing of powers.
The Canadian Council of Social Development did not say things quite the same way you are, but they said it in the following way: that there is a paragraph in the budget of October 28 which says that in the future the federal government intends to save money, a significant amount of money, by reduction of expenditures on the social service side.
The interpretation of the Council of Social Development was that they saw that as a warning that the federal government was going to transfer or to take advantage of the existing BNA Act, the existing constitution, to more clearly make the provinces responsible for social spending and thus save budgetary money and maybe move somewhere towards a balanced budget at the federal level.
What I think I see in your brief is a sense that fairness may come about because the federal government is in the best position to collect money-at least in some instances-but that the delivery should be done at the provincial level because it will be a better quality delivery service.
But, in any event, the negotiations required to come to some sensible sharing of that responsibility would be a greater priority for you than other aspects of this process. If you were designing the world to arrive at a new constitution for Canada, you would consider that to be a very key thing to get squared away.
Mr. Splane: Indeed, Mr. Chairman, I would see the constitution saying in some form of words that the federal government as well as the provinces has responsibility in the field of social services. So that, if an exercise was going on of the kind that you are describing, which threatened a withdrawal by the federal government on the grounds that why should it be concerned about social services or health services since they are the exclusive responsibility of the provinces. That is what the constitution is said to say by many persons who interpret it in the literal sense, looking at Section 91 and reading into Subsection (7) and so on, the provincialist point of view.
If the constitution said that the federal government was no less responsible for the social services than the provinces; that they were concurrent powers, perhaps with the provinces having paramountcy, that would make it much more difficult for any shuffling off of responsibility by a federal government at any time.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes.
Mrs. Mitchell, followed by Mr. Bockstael.
Mrs. Mitchell: Thank you, Mr. Chairman. I would like to welcome our guests and hope the jet lag from Vancouver is not too bad at this time of the night.
The first question I would like to raise 1s m relation to Section 1. Certainly the NDP agrees with you that the reasonable limits section is a dangerous section and we will be proposing amendments.
I might mention that the Canadian Jewish Congress, I believe, when they appeared, recommended that any restrictive measures that were enacted under this clause which are inconsistent with the operation of the Charter, that it should be added that they would lapse after 20 days, if not further extended by a two thirds vote of the Parliament of Canada and I wondered what your reaction to that kind of restrictive, defining this restriction, would be.
Mr. Splane: Well …
Mrs. Mitchell: Or have you delved into it?
Mr. Splane: We have not, I was not aware of that particular proposal. It would seem to provide a kind of cooling off period to bring a legislature to its best self, although I do not think I could comment with any kind of assurance that I was speaking for the Association or even my own considered judgment on what on the face of it sounds like a good proposal.
Mrs. Mitchell: But you think the section should be changed. You have not a specific recommendation on that.
Mr. Splane: Not a specific recommendation.
Mrs. Mitchell: All right.
It seems to me that in your brief Section 6(3)(b) is particularly important, and I think it is particularly important to the Committee. I would imagine you are probably the only group that has really stressed this as strongly as you have and I would certainly hope that will draw attention to this.
Concerning the mobility, the limitations on mobility rights, you have mentioned that you are concerned that there would be abuses of the rights to social services and, I imagine, such things as transients being refused services as they move from province to province, might be one thing. Perhaps you have some other examples that would bring this clearer to the Committee and I wondered what changes you would propose from the present provincial eligibility for social assistance. Are you saying that there should be the same kind of eligibility right across Canada and there should be no restrictions at the provincial border based on residency?
Mr. Splane: Yes, Mr. Chairman. The most difficult case, the most difficult kind of residence requirements is that which relates to social assistance to persons coming into a province and being in need very soon after they arrive.
This right to refuse assistance and to send people back to their home province, in quotes, was so strongly felt in the thirties, and forties and fifties, that when the Unemployment Assistance Act was passed in 1956, one province stayed out for a full year fearing that if it signed an agreement which prohibited it from making residency a condition for assistance, that they would be flooded by persons coming into that province.
I did not happen. It has not happened with the Canada Assistance Plan. I see no reason why, if that most controversial aspect of social benefits, residency, can be removed in that case, why it cannot be removed for health services and for any other kind of social services that might be needed by a family or an individual moving from one province to another.
Mrs. Mitchell: Yes, I think another example that is very dramatic in our memoris on the west coast and perhaps in other provinces, is the mass movement of young people some 10 years ago, when they moved, were hitch hiking across the country and, in many cases, were forcibly removed back home without perhaps due consideration to the particular needs.
I wondered, also, if you could elaborate a little bit more on the final section that you presented on the division of powers respecting social welfare, which I found very interesting, and you are saying that you really are concerned that there be a different division of powers, if I interpret it correctly, between the provincial and federal jurisdictions, and you are advocating rather than exclusivity the concept of equal powers.
I wondered if you could explain that a little bit more. It seems to me, for example, in some fields-and I am thinking particularly of the field of housing where there has been sort of a very unclear jurisdiction-that you have sort of a vague partnership, or you have had in the past, and what happens there is that you have each level of government passing the buck to the other level and nothing gets produced in the way of housing or very little does. And I would be a little bit concerned about that. I wondered if you could elaborate a little bit
more on this concept and also what changes you feel are needed in the constitution to even out this balance of power between the federal and provincial jurisdictions.
Mr. Splane: Mr. Chairman, I must say that I personally have not, and I doubt if our membership has throught of the constitution’s significance of housing in this particular light.
What this brief says is that social services, and by social services, if we had to define them, we would define them, I think, in the excellent way that they were defined in the piece of legislation called the Social Services Act I 977, which was introduced in Parliament and then was withdrawn. The work that went into that endeavour, the federal-provincial work that went into that endeavour, the provinces were intimately involved and constructively involved from I 973 through to I 977-78 in working together on it. What I would see is that the term social services in a new piece of legislation would be put in a section that dealt with social services in the way that agriculture and immigration are dealt with.
They would be concurrent powers. Which, of course, is taking precisely the opposite position to the federal working paper called Income Security and Social Services that was developed in I 969. And I can speak with some knowledge of this because I was seconded to write this paper along with some others, and I think it is long enough in the past that I can say without disclosing any state secrets that the decision that was made here to go along with the conventional reading of the constitution which said that social services were the exclusive jurisdiction of the provinces, was a position that I did not support, nor my Minister-I was then in the Department of Health and Welfare-but it was the position that was taken. It was a mistake.
It was a mistake that was made probably because of the great concern of the federal government at that time to protect other constitutional matters, namely the right to make direct payments to persons.
I think what needs to be done is to reverse this decision and to put into a new constitution something that would state the equal responsibilities of both levels of government in what I would call community and personal services.
Mrs. Mitchell: In saying that, I would assume that you are saying there should be a stronger leadership role on the part of the federal government and there should not be a move towards block funding which would really delegate the responsibility to the provinces and you would have no assurance of a standard of equality of services.
Mr. Splane: Precisely. The effect of block funding on the health system which was developed with such difficulty during the forties, fifties and sixties and which came to fruition in 1968 with ,the enactment of what we call Medicare, was working well during the period when there were conditi’onal grants, when the federal government’s leadership, which we can very properly say it exercised in relation to health services in that period, picking up it is true, the example of some provinces which had already pioneered in that field, was working well until 1977, when the Established Programs Financing Act brought in block funding and removed the
conditions which had existed up to that time and revealed the weakness of the existing constitution where social services are concerned.
The Joint Chairman (Senator Hays): Thank you, Mrs. Mitchell.
Mr. Bockstael, followed by Mr. Oberie.
Mr. Bockstael: Thank you, Mr. Chairman.
Mr. Splane, I am also very pleased to see you enunciating the concerns of your Association and putting forward your suggestions as to what should be incorporated in this documents.
You have certainly pointed out your strong support for the entrenchment of mobility rights, but you have stated your objections to the limiting restrictions that they should refer to residency qualifications for social services.
Some of the examples you have given, if I understood you correctly, were a reference to the old practice which existed when transients were picked up for vagrancy and they were given a floater and given 24 hours to move out of town and we were just transposing the problem.
But there are still situations of two kinds of transients who come from one part of the country and head to another part of the country and stopping at various centres and applying for assistance.
Sometimes they are regarded as professionals on the basis of this moving back and forth across the country looking for that kind of support.
At the municipal level, I can recall encountering people who came in and said, “I am from a certain province and I am headed to another one where I hope to find a job, and I do not have the means to complete my trip and I need assistance in the meantime”.
This is the kind of thing I see as taking advantage of the mobility rights.
Is there a way of off-setting that or is that something you think you simply must live with?
Mr. Splane: My answer to the question is that it is probably something that is worth living with as a price one pays for mobility.
I would regard the ideal situation in this way: that in the municipality or province in which persons are coming from another jurisdiction, that they would find not only their income needs being met, but also their social services needs being met.
In some instances, the counselling services that they should receive might well result in them finding out that their plan to move from place A to place B is not a good’ plan, and that there are no employment possibilities there; that their social situation is not likely to be enhanced; but that this would be discussed with them in such a way that they still have the right to accept the counselling they receive but that they would have counselling that would meet some of their personal and emotional needs which might be responsible for them moving from
one place to another rather than a more natural job related move.
Mr. Bockstael: Within a province situation, we sometimes encounter people from a small rural settlement, where the facilities of the municipal hall do not lend themselves very much to providing social assistance, and individuals decide to move into an urban centre where accessibility is greater and are shifting the burden away from their own municipality into the urban centre and expect that their needs should be met.
That, again, is a form of mobility, but it is throwing the onus on another sector of the population than their own.
Are there any ways that your Association can see or devise so as to keep that down to a minimum?
Mr. Splane: Mr. Chairman, the question is a very profoundly important one. It is the worldwide phenomenon of persons moving away from rural areas and smaller centres where prospects are poor to larger centres where they appear to be better, though they may not prove to be.
What is needed, of course, is a whole range of socioeconomic measures to provide better conditions in rural areas.
I happen to be teaching in the University of British Columbia School of Social Work. The other school of social work in British Columbia, the University of Victoria, has addressed, as one of its major priorities, rural social work, and so indeed have one or two other schools of social work.
We feel much can be done to assist the smaller communities in retaining some of their population which they can ill afford to lose, if there were amenities of various kinds, including social services; but, of course, the economic base has also to be looked at.
Mr. Bockstael: One last question, Mr. Chairman.
This may not be entirely in your field, but we are looking at barriers to mobility. One of the problems we find in the construction industry is that a tradesman moves into another centre, but the contracts are let with an agreement with a trade union. If a contractor is prepared to hire a newcomer as a carpenter, for instance, he cannot hire him because he must register with the union hall and they are dealing with a waiting list of their membership, and you must take the top of the list before you can hire this person who has just recently moved into the area.
That is a barrier to mobility.
But I do not see that as a discriminatory practice. What is your view on that?
Mr. Splane: Mr. Chairman, I would think I would have to agree with the very first of your sentence that that is not the kind of issue we have had to grapple with, but it might be a legitimate one; however, it is one on which I would not have any intelligent opinion to offer.
Mr. Bockstael: Thank you.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Oberle: Thank you, Mr. Chairman.
Mr. Splane, I just want to ask you a couple of questions which would be very brief.
I do not really know how I should tie it into the thoughts you have put into your presentation with respect to the constitution.
But you speak of different jurisdictions which dispense and manage our social affairs and social services.
Very often, when I look at the social service structure in our country, I think of three jurisdictions instead of two, one being the federal government, the other being the provincial government and the third being that jurisdiction which dispenses, as I see it, roughly one third or even more of our social services to only one third of the population and that is the unions.
I compare our system with that of more advanced industrial countries, where unions do not bargain for social services like holidays and dental plans or health plans and pensions and matters of that kind.
I am very curious to know whether you have given thought to that as well; because we have a very serious situation in this country where you could be a steelworker and have a dental plan and your children have healthy teeth, but if you are a carpenter or an auto mechanic or a waitress your children have rotten teeth, and so be it.
Have you ever given thought to that incredible situation, and have you ever made any recommendations to the government? I do not really know how it would fit into that, but certainly it would be something which should be corrected when we talk about redistribution of jurisdiction and responsibility in terms of nation building.
Mr. Splane: Mr. Chairman, I would not wish to go on record as suggesting that fringe benefits of the kind which you have just mentioned are inappropriate.
I would say, however, that the reason fringe benefits of that kind are being bargained for is an illustration of the slowness of Canada in moving forward in universally available programs, and notably in the very area of social services in which the major part of our brief is based.
What few of us realize is how slow Canada was up to the end of World War II. We were very much behind other jurisdictions like Australia, New Zealand, and of course, many of the European countries.
We started and we have made quite dramatic progress. Canada rates reasonably well in relation to income security, though not in social services.
But had we started earlier, it is quite likely that universally available programs in social services, this kind of industrial social welfare would not have been required to the extent that it is now.
Mr. Oberle: I do not want you to misunderstand me. I am not blaming the union for achieving these kinds of fringe benefits.
Obviously, in the absence of any government action, that was a legitimate goal for the unions to pursue.
But is it not unfortunate that today, in a more enlightened environment, that we cannot turn back the clock and do what more advanced industrial nations are doing, where unions bargain collectively with governments, with business in a tripartite sort of situation and everyone bargains for improved social services which are then implemented by either a form of government and get the unions and businesses out of dispensing social services to a select few, because we have really certain classes of citizens in our country for that very reason, and the social services that we have afforded ourselves are disproportionately distributed in a rather discriminatory way.
Would you agree with me?
Mr. Splane: Yes, Mr. Chairman, I agree that the thrust of your argument is similar to the thrust of mine. If we had universally available public social services, it would be unnecessary for groups like the one in which I am involved-the situation at the university where there is a splendid dental plan which I am glad the university has, but I would be just as happy if I had a similar dental plan which was publicly provided through tax dollars.
Mr. Oberle: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Mr. Oberle.
Mr. Corbin: Thank you, Mr. Chairman.
I have a brief question. Would the witnesses first tell me, as I understand the case to be, in the field of social services and specifically in the dispensation of so-called welfare, the majority of the recipients are, of course, disadvantaged people who do not most of the time express themselves too well in one or other of the official languages, and in fact, in some other language.
Therefore, that can complicate the dispensation of some social services.
Would you agree with that kind of general statement? Has that in fact been your experience?
Perhaps it has not been. Perhaps your field of work is mostly concentrated out in British Columbia; but I would like to have your comments, if you have any to make in that regard?
Mr. Splane: Mr. Chairman, it is an interesting question. It had not occurred to me.
One of the modern phenomena is that during a person’s lifetime in a modern industrial state, like Canada, in almost every socioeconomic group, people will require and receive income support measures or social services; therefore, you have persons with all levels of communications skills.
No doubt, those who are most disadvantaged and who have greater trouble in getting schooling, who have come from
disadvantaged families and neighbourhoods, are likely to have less sophisticated communications skills in seeking out and demanding access or seeking access to social services of various kinds.
One of the skills that we as social workers attempt to attain is the skill of communicating with people and helping them to express their needs and have their needs met, whatever level of communication and capabilities they have.
Mr. Corbin: What I am I leading up to, and perhaps you may not have guessed it, but we have had a number of witnesses before this Committee who have stated very plainly that the language of delivery of health and social services has a direct bearing on their effectiveness and that we, therefore, ought to recognize the right to health and social services in the minority or the official language and they add: where numbers warrant; and the right to administer, of course, such services in one or the other languages.
Since you do represent an all Canadian membership of practising professionals in the varied field of dispensation of health and welfare services, would you subscribe to the view that we ought to ascertain that those services are generally available in one or the other of the official languages, and indeed in the third language if the need is there?
Mr. Splane: Indeed, Mr. Chairman, the goal of the authorities in providing social services, and this would apply to whether they are public authorities or members of voluntary social service agencies …
Mr. Corbin: I am basically referring to publicly dipensed services.
Mr. Splane: Ought to meet the language needs of their clientele and Mrs. Mitchell will know that in the City of Vancouver that is a very difficult question or problem to address where we have so many different language groups and we probably do not meet the need with anything like the completeness that we would like to, but it is an important one that we try to address through various means of interpreters and attempting to bring into schools of social work and into community college programs persons of various language and ethnic backgrounds so that particular groups of people are served by persons who understand the culture and, if possible, speak the language.
Mr. Corbin: You have answered my question very well. Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Corbin.
Mr. Splane and Ms. Gowanlock, we appreciate your being here this evening and I am sure by the questions you will realize how important your document is and that we will be mindful of it when we are doing the clause-by-clause study of the bill.
Thank you very much for being here.
Mr. Splane: Thank you, Mr. Chairman, it was a pleasure being here.
Ms. Gowanlock: Thank you.
The Joint Chairman (Senator Hays): Tomorrow morning at 9.30 the honourable Allan Blakeney will be here. Until then this meeting is adjourned.
THE PUBLIC INTEREST ADVOCACY CENTRE
THE NATIONAL ANTI-POVERTY ORGANIZATION
THE SPECIAL JOINT COMMITTEE ON THE CONSTITUTION OF CANADA
Prepared by PIAC for
PIAC and NAPO
1. The Public Interest Advocacy Centre (PIAC) and the National Anti-Poverty Organization (NAPO) support the principle of the entrenchment of a Charter of Rights in the Canadian Constitution. Like other organizations which have appeared before the Committee, however, both PIAC and NAPO believe that the Charter proposed is seriously flawed, and that the method of entrenchment is incomplete. (NAPO will also be submitting a further brief under separate cover.)
2. What are PIAC and NAPO and who do they represent? PIAC is a federal not-for-profit corporation which makes legal services available to public interest groups which cannot afford to hire their own lawyers and are not eligible for legal aid. PIAC has, for example, provided legal assistance to anti-poverty, native, environmental, and consumer groups in proceedings before regulatory tribunals such as the Canadian Radiotelevision and Telecommunications Commission, the National Energy Board, and the Ontario Energy Board. In addition, PIAC conducts an advocacy training programme for public interest groups to teach them the skills necessary for effective participation in the regulatory process. PIAC has recently provided counsel to clients in three major civil liberties cases: Stella Bliss, Dawn Cornish-Hardy, and Inuit Tapirisat of Canada and NAPO, with the Attorney-General of Canada being on the other side in all three cases.
3. PIAC is not itself a public interest group but has extensive experience in assisting such groups-many of whom represent minority points of view-as well as experience with the effect of the regulatory and judicial processes on the aspirations of these groups. PIAC’s experience leads it to certain conclusions with respect to the proposed Charter of Rights. PIAC wishes to share that experience with the Committee.
4. NAPO is a federal not-for-profit corporation which represents the interests of Canada’s poor. NAPO provides a national focal point for some 1600 anti-poverty groups in every province, territory and region of Canada and has as well 3000
individual members. NAPO disseminates information about Canada’s poor, provides information to the poor, and is active in fighting poverty.
5. PIAC believes, first, that the proposed Charter of Rights does not provide adequate protection from encroachment by ordinary Acts of Parliament: in short, the Charter is not fully entrenched. Second, that special provisions are necessary to instruct judges in interpretation, and to improve citizen redress in civil liberties cases.
6. NAPO shares these concerns and, in addition, believes that the Charter must be amended to include the right to benefit from and share in the economic development and social progress of Canada.
The Purpose of this Submission
7. The purpose of this submission is to identify the areas of the proposed Charter of Rights which PIAC and NAPO believe can be improved and to suggest possible amendments. PIAC and NAPO wish to emphasize again that they support the principle of an entrenched Charter of Rights and intend these comments to be constructive.
The concept of a Bill or Charter of Rights
8. The concept of a Bill of Rights is several centuries old. Perhaps the most influential model for Canadians is the closest: the Bill of Rights of the United States of America. The U.S. Bill of Rights, however, relies very hearvily upon the philosophical and political spirit of the French Revolution. As a codification, it is essentially civilian in legal tradition, while its political philosophy is republican.
9. By way of contrast, the British North America Act contains no Bill of Rights, but has given Canada a constitution similar to that of England (with the primary difference being the separation of powers between our federal and provincial governments). Unlike the Franco-American constitutional tradition, the Anglo-Canadian constitutional tradition is common law (incremental rather than codified), and monarchica (in modern terms, the notion of Parliamentary sovereignty).
10. An important function of U.S. Bill of Rights is to give meaning to the power of courts to disallow legislation, as part of the concept of a continual competition for power between the three branches of government; legislative, executive and judiciary. In Canada, the legislative and executive branches are combined into one, and even the Act establishing the Supreme Court of Canada is a statute of the Parliament of Canada which, theoretically, could be repealed or substantially amended at any time by Parliament. Hence the Anglo-Canadian concept of the role of the judiciary is as a body subordinate
to Parliament with the responsibility to interpret the will of Parliament, not to overrule it.
11. Can a civilian-republican legal concept such as an entrenched Charter of Rights now be injected successfully into the common law constitutional tradition of Canada? We believe that it can, but not as simply as proposed. Adjustments to the basic concept will have to be made if our judges are to be able to deal with it consistently with Canadian lega tradition, which we should be reluctant to lose.
12. The present Canadian Bill of Rights has been a disappointment to virtually everyone. Apart from the famous Drybones case, it would be difficult to find any major civil liberties case of significance in which the Bill of Rights has been a useful tool. Unfortunately, it has become fashion able on the part of legal commentators to blame this on the attitudes of the judges on the Supreme Court of Canada. The solution which has been recommended is the appointment to the Court of judges drawn from backgrounds different from those currently on the bench, the appointment of one or more female judges, and the entrenchment of a Canadian Charter of Rights. By themselves, none of these is likely to provide an effectiv solution; in practice, these changes may well have little effect. Unless we are very careful to look at what Canadian judges will feel compelled to do with a Bill of Rights, in accordance with Canadian legal traditions, Parliament may well succeed in passing the Trudeau Bill of Rights as a replacement for the Diefenbaker Bill of Rights, with little discernible difference. The specific steps which should be taken to ensure that the new Charter of Rights represents a significant improvement over the present Canadian Bill of Rights are set out below.
An Entrenched Charter of Rights
13. The notion of an entrenched Charter of Rights implies both protection from alteration of the actual terms of the Charter and also, protection from encroachment and erosion by ordinary Acts of Parliament. The proposed Charter may achieve the former but, as drafted to a significant degree will fail to achieve the latter.
14. The proposed Charter of Rights has little protection from encroachment and erosion by ordinary Acts of Parliament because it fails to render compatible the entrenchment of a Bill of Rights, which is foreign to Anglo-Canadian constitutional notions with our Parliamentary and judiciary traditions. Yet the proposed Charter has its feet firmly planted in both traditions. Parliament must decide either that is is seeking the i passage of a Charter of Rights which is subject to all that our Parliamentary tradition implies-albeit with a complicated amending procedure-or that it is seeking a Charter which is entrenched against that Parliamentary tradition. There can be no equivocation.
15. It is worth remembering that the entrenchment of statutes is not entirely foreign to Canada. The British North
America Acts are entrenched so far as our Parliament is concerned.
Our Parliamentary Tradition
16. The essence of our Parliamentary tradition can be distilled from two examples-Magna Carta and the Bill of Rights.
17. Magna Carta-the cornerstone of our democratic tradition- never was and is not now a constitution enforceable against Monarch and Parliament. King John did enact it as law in 1215 but he retained the unrestrained power both to repeal it and to enact other laws which encroached on or eroded Magna Carta. In this regard it is significant that by the time Coke wrote his Second Institute Magna Carta had been enacted into law thirty-two times by a succession of Monarchs, a fact which demonstrates that as long as people have been subject to absolute power they have feared it and have sought assurance that it would be restrained.
18. Perhaps the most significant document in the evolution of a supreme Parliament is the Bill of Rights of 1689. When James II fled England, a convention of parliamentarians declared him to have abdicated and then went about the work of drafting the terms under which they would accept the assentior of William III and Mary to the Throne. Those terms were accepted by William and Mary and were enacted by Parliament as the Bill of Rights.
19. It cannot be disputed that the events of 1689 themselve are of foremost importance to our constitutional development but the document which embodied that development was the Bill of Rights. What is significant is that Parliament was accepted to be a check on what had been the absolute power of the King. The King no longer ruled as of divine right but ruled by and with the consent of his subjects as represented by Parliament. The absolute power of Parliament came to be substituted for the absolute power of the King.
20. It took more than four and a half centuries and a civil war for England to progress from Magna Carta to the Bill of Rights. It has been three centuries since. Canada has not had a civil war, but our Bill of Rights has had little effect. It is clear that Canadians need an effective new Charter of Rights. What is needed is a check on the power of Parliament-just at the English Parliament in 1689 needed a check on the power of the King-an assurance of no interference.
21. The proposed Charter of Rights does not meet this need. Like the half-entrenched soldier, the feet may survive but the head will inevitably be destroyed.
A Comparison with the Diefenbaker Bill of Rights
22. The existing Canadian Bill of Rights is not entrenched in that it is not protected by constitutional barriers to amendment or alteration. Although the then Prime Minister undoubtedly believed that section 2 would provide protection from encroachment and erosion by other Acts of Parliament, as we now know it was not enough to overcome the legal import of the notion of Parliamentary supremacy; the Supreme Court of Canada has treated it as just another
statute, to be interpreted in the narrow, literal way ordinary statutes are interpreted. This is not the fault of the judges. They have been implicitly instructed, for centuries, to interpret statutes in accordance with such principles of statutory interpretation, within the framework of Parliamentary supremacy. If Parliament wants to change the way judges treat any future Charter of Rights, whether or not we label it “entrenched”, it must clearly and unequivocally so instruct them.
23. We have learned that a Charter of Rights must have both feet firmly planted. The Diefenbaker statute stood on only one leg and collapsed under the weight of precedent.
24. The proposed Charter of Rights merely changes legs: it provides an amending formula, but, in section 1 opens the door to enroachment and erosion by ordinary Acts of Parliament.
25. Section I of the Charter of Rights constrains the Charter within “such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.” Its meaningless vagueness opens the door to the very abuse of Parliamentary supremacy which the Charter is intended to check.
26. Where would we be now if the English Parliament of 1689 had tipped its hat in the direction of the divine right of Kings? That Parliament, in enacting that Bill of Rights, could no more recognize the pretentions of James II to the Throne than can this Parliament in enacting this Charter of Rights recognize its own claim to constitutionally unchecked supremacy. Section I of the Charter of Rights simply must be deleted if a truly entrenched Charter of Rights is to be created.
The Need for a Spirit of Consensus
27. The enactment of the English Bill of Rights of 1689 reflected a substantial degree of consensus on the need to check the power of the King. While that concensus was not easily or cheaply achieved, and the pretentions of the Jacobeans were not resolved until 1745, without it, the English revolution of 1689 might have earned a name other than “The Quiet Revolution”.
28. To be meaningful the Canadian Charter of Rights will also be revolutionary. To be successful it must be founded on consensus. The need for a Charter is clear. The content of the Charter is a significant source of argument. Time is needed for the consensus to develop more fully. The value of consensus is inestimable.
29. The price of haste will be a public perception-and a judicial perception-of this Charter of Rights as a political document-a simple statute and, despite its pretentions, not a constitutional Charter. The result can only be judicial treatment similar to the present Bill of Rights.
The Fear of Entrenchment
30. Those who argue against entrenching a Bill of Rights point to recent American experience with an ever increasing volume of constitutional litigation. What these critics overlook
is that the first Act of Congress was not struck down by the U.S. Supreme Court until 1857.
31. Nor is there any reason to suppose that Canadian jurists will leap into the role of legislators. Our judiciary has always acted with great care and a high degree of circumspection when considering cases involving the powers of the legislatures. Indeed the Supreme Court of Canada has been sharply criticized for its reluctance to use the Bill of Rights to render inoperable an Act of Parliament, not for any overzealous use of it. There is no danger that our judges would change their attitude of respect for and acknowledgement of the role of the legislature.
32. Canadian politicians have also been publicly critical of the concept of a judge overruling legislation: “I don’t want some judge telling me what movies I can watch”. It should be noted, however, that even without an entrenched Bill of Rights a case involving the powers of the Nova Scotia Board of Sensors has been heard by the Supreme Court of Canada. More importantly, in an age of big government and big bureaucracy, it seems almost frivolous to dismiss the needs of ordinary citizens for protection from executive and legislative abuses of their fundamental rights by reference to a few controversial American censorship decisions. Nevertheless, confining our attention for the moment to the narrow issue of censorship, we would ask, perhaps somewhat rhetorically, whether Canadians would really prefer to be told what movies they may or may not watch by politicians rather than by judges. While neither solution is perfect, the standard of objectivity and political impartiality we expect from judges is considerably higher than from politicians.
33. Turning to the broader issue-the appropriate role of the judiciary in relation to the legislative-executive power found in Parliament-it is somewhat ironic that some of the same politicians who would not trust judges to decide what movies they can watch would nevertheless trust the same judges to determine authoritatively whether the proposed enactment of the Canadian Constitution is lawful. If judges cannot be trusted to make the relatively simple decision as to whether a particular censorship statute infringes unduly upon our freedom of speech, how can they be trusted to decide the important constitutional question which several provincial governments are now so anxious to put before the courts? The perceived need of several of the provincial governments to use the judiciary to protect what they perceive to be provincial constitutional rights should estop them from treating the judiciary as unfit to determine the civil liberties of ordinary citizens. In our view, given proper instructions from Parliament, after sufficient debate and the emergence of a broad consensus, the Canadian judiciary will perform an admirable job of implementing the Charter of Rights.
Freedom from Want
34. President Franklin Delano Roosevelt in a speech to the congress of the United States on January 6, 1941 enumerated four fundamental freedoms:-freedom of speech and expression; freedom of every person to worship God in his own way;
freedom from want; and freedom from fear. These freedoms are given content and meaning in the Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations as resolution 217 A (III) on IO December 1948.
35. The ideal has been affirmed by our Prime Minister in a speech at the Mansion House in London on March 13, 1975. After referring to the progress which had been made in achieving freedom of speech and freedom of assembly, the Prime Minister stated:
“We now find ourselves in a struggle to establish with equal sanctity the negative freedoms, the freedoms ‘from’: hunger, from disease, from nuclear holocaust, from environmental degradation.”
36. The Universal Declaration of Human rights held out a great hope to the peoples of the world; a hope worthy of the Christmas spirit. The Canadian Charter of rights offers no great hope. In the sphere of economic rights it enshrines a meaness which is not worthy of Parliament-Parliament which has on so many occasions acted with charity and compassion.
37. Others who have appeared before the Committee have commented inadequacies in the proposed Charter in light of positions taken by Canada internationally. We do not propose to reiterate these observations although we share many of the concerns. One point, however, has not been made by others: nowhere in the proposed charter is there a statement that Canadian have the right to be free from want. There are provisions respecting freedom of speech and expression, freedom of worship, and freedom from fear but nothing respecting freedom from want.
38. Nowhere is there anything resemblir.g Articles 23, 24, 25 and 26 of the Universal Declaration of Human Rights which provide for:
-the right to work
-the right to protection from unemployment
-the right to equal pay for equal work
-the right to just and favourable remuneration supplemented, if necessary, by other means of social protection
-the right to unionize
-the right to rest and leisure
-the right to paid holidays
-the right to an adequate standard of living including necessary social services and social secu
-the right to education and choice of education.
39. Nowhere is there anything resembling the principles and objectives of the Declaration on Social Progress and Development proclaimed by the General Assembly of the United Nations on 11 december 1969 (Resolution 2542 (XXIX)) which re-affirmed both the pledge of the Members of the United Nations under the Charter and the principles of the Universal Declaration on Human Rights.
40. If the Committee will not accept these principles then we would commend the rights advocated by the Prime Minister in his Mansion House speech.
41. Progressive legislation in Canada has gone far to share with Canadians many of the benefits of economic development and social progress. Successive Governments in successive elections have re-affirmed their commitment to continue to enact progressive legislation. The need for that re-affirmation demonstrates vividly that Canadians’ right to be free from want-to share the benefits of economic development and to live in a socially just state is as fragile as the rights conferred by King John in Magna Carta. In the absence of entrenchment, what Parliament gives, Parliament can take away.
42. A Canadian Charter of Rights must contain provisions creating a right to be free from want modeled on the language of the Universal Declaration of Human Rights. Now is the time to remember Christmas past-to rekindle the hope of that great year of peace, 1948. If this Committee and Parliament will accept this challenge, Canada’s poor will find this Christmas and Christmas’ future that much richer.
43. We would also like to take the opportunity to make some other specific comments.
44. In his address to the Committee, R.G.L. Fairweather, Chief Commissioner, Canadian Human Rights Commission, asked that section 15 of the Charter dealing with discrimination by expanded to include physical and mental handicap, marital status/situation de famille, and sexual orientation. NAPO supports this rquest.
45. With respect to mobility rights, the limitation proposed by subsection 6(3) seriously discriminates against the poor. First, paragraph 6(3)(a) will perpetuate the pernicious provincial practice of preventing competent out-of-province tradespeople from pursuing a livelihood in the province by refusing to recognize out-of-province qualifications. A right to move is no comfort if you cannot work when you get there. Second, paragraph 6(3)(b) identifie a specific class of Canadiansnamely, those on welfare and then deprives them absolutely of the right to move. This is blatant and unjustified discrimination. Finally, paragraph 6(3)(a) would appear to permit the continuation of those provincial laws of general application which restrict movement and residence, except for those which discriminate among persons “primarily” on the basis of “province of present or previous residence”.
46. NAPO, therefore, asks that subsection 6(3) be deleted in its entirety. As an alternative NAPO asks that paragraph 6(3)(b) be deleted in its entirety; that paragraph 6(3)(a) be amended so that provincial barriers cannot be errected to defeat the right of movement by tradesmen with out-of-province qualifications; and that paragraph 6(3)(a) be amended so that it does not apply to paragraph 6(2)(a).
47. The proposed Charter contains a more subtle form of discrimination. While the rights enumerated will be of value to Canadians with means, many are valueless to those without means. What use is the right to hire a lawyer (s.IO(b)) if you don’t have the money to pay him? What value is the right to form an association (s.2(c)) if you can’t afford the cost? 48. There must be a clear statement in the Charter that those who Jack the means will be provided the means to exercise and enjoy the rights enumerated in the Charter. Not to do so is to give credence to those who argue that meaningless rights are no rights at all.
49. A Bill of Rights written in beautiful language but without the ability to be enforced inexpensively, quickly and fairly, is nothing more than a piece of paper. By way of illustration, one could hardly find more stirring draftmanship than in the Constitution of the U.S.S.R. Yet we would hardly describe that country as having a vigorous tradition of civil liberties. Nor does the Canadian Bill of Rights give us much to be smug about. Probably the leading Canadian case to declare a limit to arbitrary executive power was Roncarelli v. Duplessis, decided before the Canadian Bill of Rights was passed; we are not aware of any decisions of comparable importance to civil liberties since.
50. Given the Anglo-Canadian constitutional doctrine of Parliamentary supremacy, the present Canadian Bill of Rights has been treated by the judiciary as somewhat of an unconstitutional foreign intrusion. It would be a mistake to believe that this is because Canadian judges are insensitive to civil liberties. Rather, Parliament made the mistake of attempting to overlay on our tradition of judicial conscience, as applied in the common Jaw mode of reasoning, a mere statute which require judges blatantly to declare Parliament’s legislation inoperable. This heavy-handed legislation is insensitive to the traditional Anglo-Canadian judicial subtlely in protection civil liberties.
51. Within our common law constitutional traditions, there is room for judges to render legislation nugatory, but not by saying so expressly. For example, there are maxi or cannons or statutory interpretation which instruct judges to interpret legislation so as not to infringe upon the rights of the subject. Similarly, judicial decisions have applied the maxim that Parliament cannot have intended an absurdity, the definition of which is, of course, determined by judges. The effect of our judicial trdition seems to be a willingness, in rare cases, to render oppressive legislation nugatory, but to do it while relying on some benignly obscure, archaic maxim of statutory
interpretation, rather than articulating an overt attack on the notion of the supremacy of Parliament.
52. If we are now to expect judges to be more candit in their limitation of Parliamentary supremacy, we must tell them so, and not merely in the Charter of Rights itself. The Interpretation Act should be amended so as to instruct judges to interpret the Constitution Act of 1867-70 differently from an ordinary statute. For example, ordinary statutory interpretation precludes judges from looking at the Parliamentary debates which preceded the passage of the legislation. Judges may consider only the literal wording of the Act, and cannot look to extraneous sources. This should be expressly changed in the Interpretation Act, but limited to the Constitution Act, 1867-70.
53. Similarly, if Parliament wishes to have the provisions relating to equality before the law interpreted in a substantive rather than a procedural way, this instruct should be provided in the Interpretation Act. Finally, the judiciary might be instructed that where there exists a reasonable doubt as to whether a particular piece of legislation infringes upon one of the enumerated rights of citizens, the reasonable doubt should insure to the benefit of the citizen, and not to Parliament, as Parliament can always ask other legislation which achieves the same purpose in a lawful manner, whereas the citizen has no other remedy.
54. There should be a section stating clearly that the Constitution Acts 1867-1980 have primacy over all other statutes and the validity of all other statutes shall be judged by reference to the Constitution Acts. Secondly, a section should be included permitting our courts to examine the background to the Constitution Acts 1867-1980, namely, debates of Parliament, reports to Parliament by the Law Reform Commission or other bodies or agencies, and so on. This will ensure that our courts understand fully the context in which the Acts were drafted.
55. The time and expense of civil liberties litigation is a factor to which few have given any significant attention. It seems to have virtually excaped the concern of Parliament to date. Most citizens would be deterred from bringing any court action to preserve their rights because they rightly fear that it can take several years before the traditional Department of Justice standing challenge or other interlocutory obstruction is resolved and, if resources still permit, the matter finally reaches the Supreme Court of Canada on its merits (costs are likely to be in the tens of thousands of dollars). Today, civil liberties litigation is not for the ordinary citizen, but a luxury for the rich or the sacrifices of the zealot. This must be changed.
56. We would propose that the Supreme Court of Canada Act be amended so as to permit any citizen to apply directly to that court for a declaration (or appeal, or other authoritative ruling) to determine whether a piece of legislation (or execulite
tive action pursuant thereto) represents a violation of his civil liberties. An application for leave should be brought before a single judge of the Supreme court, in chambers. Consideration might be given to allowing such an application to be conducted in writing at the option of the applicant. Where the question of law is considered by the judge to be of sufficient importance to grant leave, the case should be heard forthwith, and since the respondent will invariably be the Crown, no costs should be awarded against the citizen unless the judge finds his action to have been brought in bad faith, or to be merel frivolous and vexatious.
57. Part IV of our submission has presented our preliminary views on the kinds of supplementary legislation necessary to render a Charter of Rights operable in the context of Canadian constitutional and legal tradition. We do not believe that we have found the “final answer” to this problem, but would recommend that considerably more research and discussion is necessary before we can feel safe that a solution has been found.
58. We thank the Committee for the opportunity to make this submission and hope that our comments will assist the Committee in this great and noble task.
JOINT COMMITTEE ON THE CONSTITUTION OF CANADA
THE UNITED CHURCH OF CANADA
The United Church of Canada shares both the exhilaration and concern of these present days of constitutional debate. Exhilaration, because the debate marks an important step in establishing a new ethos and identity for Canada. Concern, because the debate, as it attempts to move us to a new and firmer unity, has had the unfortunate effect of straining relations and sharpening differences.
We in the United Church are sharing in the wide sense that there is nothing inevitable about the arrival of a new dawn of Canadian unity with justice for all. For too long we have been uncritically optimistic. Recent events make us reflect in a new way that nothing as momentous as turning the corner of our history can be achieved without mental and spiritual struggle by all the social, ethnic, religious, economic and political communities that comprise Canada. For this reason the Executive of the General Council of the United Church has called for an extension of the hearings by the Joint Committee, and that hearings on the government of Canada proposal be made widely accessible.
As representatives of the United Church, privileged to appear before the Joint Committee, we do not have a mandate from our membership to speak on the wisdom of patriating the Constitution as proposed by the government of Canada. We do have the mandate to raise with the Committee certain concerns pertinent to the constitutional question which reflect the ongoing positions of the United Church’s General Council and other policy bodies within the United Church. This is particularly so with respect to native peoples’ rights. As a Church we have a commitment to stand in solidarity with the native peoples until their rights are ensured in full.
For us there is a call to speak for human rights and the sharing of wealth that arises out of a Bible shaped faith. The United Church has ropeatedly affirmed mission goals related to personal and distributive justice. It would be inconsistent to remain silent when national attention is focused on these areas through the constitutional debate.
II. AREAS OF PARTICULAR CONCERN WITH RESPECT TO PATRIATING THE CONSTITUTION TO CANADA
1. Native Peoples And The Constitution
Among all the groups in Canada that are concerned about guaranteeing essential rights and freedoms in the proposed Constitution, the aboriginal peoples stand out as a special case. We draw their situation to the attention of this committee with the utmost urgency.
The proposal to patriate the Constitution in the very near future has created a state of emergency for the aboriginal peoples of this country. In some cases, they stand in danger of having the diminished rights they now experience virtually cast in stone, with little room left for manoeuvring. As great an obstacle as their rights represent to the development plans of some provinces, the aboriginal peoples are unlikely to find many supporters of their rights during the post-patriation period. Theirs is therefore a case that must be dealt with before patriation.
The British Crown recognised the aboriginal nations, guaranteeing all rights and sovereignties in the Royal Proclamation of 1763. Yet these peoples have endured numerous efforts by settlers to extinguish their aboriginal rights and to enforce their assimilation into the new society established in this land.
As well as all know, many aboriginal nations never did sign treaties. Today, they are still struggling to hang onto the aboriginal rights guaranteed to them by the British Crown. For a variety of reasons, various governments have found it more convenient to negotiate with aboriginal nations as if the only issue in dispute were hunting rights on pieces of property. The discussions of the past decades have focused on “lands claims” negotiations: but such a phrase obscures the real issue.
By functioning as if this were a simple negotiation over the use of a piece of land, we perpetuate the myth that the aboriginal peoples of Canada are simply another ethnic minority, who require special status to protect them. Few recognize that the “land claims” negotiations are actually between the representatives of nations-the aboriginal nations and the government of Canada.
Our involvement as a church with native groups in their struggles for justice in the North have convinced us that the pressure on them to simply abandon their aboriginal nationhood is enormous. Foreign and domestic oil companies offer tempting proposals for development of northern resources, with the jobs and the royalties most Canadians want. But the oil is only accessible to those companies if it belongs to the government of Canada. Until the aboriginal nations and the government of Canada reach satisfactory agreements on the question of aboriginal rights, every decision to go ahead and develop oil found on traditional native land simply creates another precedent for believing that we are dealing with a troublesome group of people who want to hold up development of land that is really ours by virtue of our greater need, or our numbers.
We have been appalled at the willingness of companies, governments, and indeed of many Canadians to simply put aside the question of negotiations between aboriginal nations in the rush for the resources of the North. At this point, the rights of the aboriginal nations within Canada are supposed to be guaranteed by the Crown. If aboriginal rights can be brushed aside under present conditions, what assurance can we possibly draw from the brief reference in Section 24 of the Canada Act? In fact, Section 24 is so weak that it calls into question our claim that we will bargain in good faith with the representatives of aboriginal nations once the Constitution has been patriated. Our fear is that once the Canada Act becomes law, the status quo rights of native peoples-ie, the reduced rights, with no recognition of aboriginal nationhood-will be virtually guaranteed.
Our experiences with partner churches throughout the world have taught us to be extremely wary of weak and vague “guarantees of the rights of native people”. In country after country, the aboriginal peoples have been forced off their land, assimilated into the poorest segments of the local population, and sometimes killed, whenever the resources under their land became attractive to industrialists. One of the most tragic cases has recently been widely reported in our papers: the slaughter of the native population of the Quiche population province of Guatemala, where the discovery of oil on their land brought them into direct conflict with the government and military of that country.
The attacks on aboriginal peoples of the world have become so widespread that they are the subject of the hearings of the Russell Tribunal in Rotterdam at this very time. A global pattern of oppression has been developing, one in which we do not want to see Canada participate.
It is unthinkable that the aboriginal peoples of Canada would be treated as others have been in Guatemala or in Chile, or in other parts of the world, but neither did aboriginal peoples elsewhere expect the treatment they have received. In a world where nations have been known to go to war over resources, particularly oil and gas, we believe that the Canada Act must reflect the obligations we have undertaken as a former British Colony, as well as the reality of the pressures that will probably be placed on us as the world grows increasingly energy-hungry. As a civilized nation, let us respect the agreements made by the British Crown and let us guarantee that we will negotiate with the aboriginal nations in good faith. Let us do nothing to jeopardise that process.
We therefore strongly recommend that Section 24 (or another section) clearly set forth in detail guarantees with respect to the aboriginal and treaty rights of native peoples as understood by them, and that representatives of aboriginal nations be full members of all future constitutional talks.
2.Quebec and the Constitution
The United Church of Canada is overwhelmingly an Anglophone middle-class church. Nevertheless, it has recognized that considering itself a national church requires that it learn
about, appreciate, and seek to support the aspirations of cultural and social minorities that make up the fabric of Canada. The two peoples that the church has concerned itself with most have been the native peoples and Francophones. We have already discussed the native peoples in terms of the constitutional debate so let us turn to the Francophones.
Though the United Church has been involved in parish work with the Francophones for many years, it is the church’s involvement in political concerns that is relevant to the present discussion. The United Church has always seen its role as one of identifying some of the underlying value questions rather than endorsing one or other political option. In fact, at the 1972 General Council in Saskatoon, the church stated “that no political structure or movement to change such structure ought ever to be regarded as sacred or as more than an instrument to serve human ends” and further, “that a crucial factor in the shaping of future political structures must be the deliverance of French Canadians from any sense of subjection and that such deliverance requires an openness to a reconsideration of the present structure of Confederation.” ( 1972 General Council).
As the General Council met in Calgary in 1977, it was very aware that the Parti Quebecois, having won the November 1976 election, was preparing for a Referendum sometime in the future. The church reiterated its support the democratic right of peoples to self-determination and in that context recognized that “this new context offers an opportunity to grow in our comprehension of what constitutes a human right. We expect protection for the rights of individuals, the right to a fully human life, the right to a personal cultural identity, the right to participate in social, economic, and political decisions, the right to express opinions differing from those of the majority. But we also call attention, as did the General Council in 1972, to collective rights, to the rights of communities and peoples. In this we include the right to take what measures are necessary for collective survival and fulfillment.” ( 1977 General Council)
At the same time within Quebec, the Francophones represent the majority and have within their boundaries various minorities who similarly have rights that need to be respected. “We call for safeguards of both individual and collective rights in a situation full of conflicting interests.” The 1977 statement recognized that “No solutions are ideal. New political solutions bring with them new political problems.” (1977 General Council)
The constitutional discussion was seen as being broader than just a debate between Quebec and Canada. “It is vital in the entire debate that other groups of people in this multi-cultural country not be ignored … the many issues concerning the rights of the native peoples, minorities and immigrants come crowding in for attention, and must be discussed and dealt with. A reworking of the Canadian Constitution would provide an exceptional opportunity to take these other groups into consideration, and to respond to the native peoples’ demands for justice, in particular.” (1977 General Council)
The church acknowledged that conflict was inevitable but saw that as an opportunity for growth and participation and not as a tragedy or reason for avoidance. “We know that there
must be a solution worked out in the context of a political process of which conflict is an essential element. Christians believe God acts in history, therefore Christians are urged to view the present political struggle in the light of God’s living Presence in history and to participate in it on the basis of this faith.” (1977 General Council)
In August of this year, 1980, several months after the Quebec Referendum, General Council was meeting in Halifax and again turned its attention to the Canada-Quebec debate. The church again reiterated the vital importance of the involvement of many participants in the discussions on the future of Canada. “The heart of the matter within the process of designing the future is the recognition of the right to self-determination of peoples in Canada without prejudging the eventual structural and constitutional result. This involves the acceptance of minorities as responsible participants in building the future … Unilateral action in designing solutions to problems, without adequate participation, would only demonstrate the attitude against which minorities have protested.” (1980 General Council)
III. RIGHTS OF MINORITIES
Let us turn briefly to several other minority groups the rights of whom the United Church has been concerned with and whose voices seem not to have been heard so far in this discussion. As the Canadian government in 1972 was preparing bill C-25, The Canadian Human Rights Act, the Department of Church in Society of the United Church urged that several further categories be included on the basis of which discrimination would be prohibited in employment, accommodation, and access to services. Those categories were “physical handicap”, “mental and emotional handicap” and “sexual orientation”. We were pleased that “physical handicap” was included in the Act but disappointed that it related only to employment.
We are aware that the Advisory Committee of the Canadian Organization on the International Year of Disabled Persons 1981 is encouraging the government to amend Article 15, Clause I, to include “physical and mental disability”. We support their efforts. Physically and mentally handicapped persons have experienced discrimination for years but with next year designated as the International Year of Disabled Persons, the timing is particularly critical for such protection to be extended.
The inclusion of “sexual orientation” is admittedly a more controversial though no less important area. Though there continues to be differences of understanding about homosexuality in Canadian society and in the church, there nevertheless is a growing consensus of the need to have “sexual orientation” as one of the categories on the basis of which discrimination is to be prohibited. Mr. Gordon Fairweather, the Canadian Commissioner of Human Rights, has long advocated that the government amend the Act to make such an inclusion. We support him and others who argue that the proposed Charter of Rights and Freedoms include “sexual orientation” as one of the grounds on which discrimination is to be prohibited.
Three of the most deprived groups within our society, with respect to protection under human rights legislation, are refugees, immigrants and the inmates of both penal and mental institutions.
If Canada is to be a just country, and to be seen as such in the eyes of the world, then justice must extend to all, and not exclusively to those who are holders of full and intact Canadian citizenship.
(i) The provision of cities of refuge was written into the law of ancient Israel. (Numbers 35:14). We would like to see it written into Canadian human rights legislation (entrenched or otherwise) that political refugees whose bona fides are established by the United Nations High Commissioner for Refugees may find asylum in Canada as a right. In the proposed Charter of Rights and Freedoms a section to this effect could strengthen the universal cause of human rights and serve as a model for other countries.
(ii) A measure of the justice of every country is its hospitality and fairness to newcomers. Will the Charter of Rights and Freedoms be specific with regard to the rights of immigrants before they achieve full citizenship e.g. will it be stated that immigrants are to have all the human rights accorded full citizens? Will the rights of illegal immigrants be also stated?
(iii) Offenders of the law and the mentally disturbed are still persons. Is it enough to write into law that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”? (Sec. 12) Does not this section need some strengthening by mentioning the right to normal levels of health care, exercise and sanitation; the right to communicate with family; and the right of access to legal counsel and to members of Parliament or provincial legislatures?
IV. THE RIGHT TO A BASIC STANDARD OF LIVING AND SOCIAL SECURITY
It encourages us to learn that the proposal to guarantee equalization is not a matter of contention between the government of Canada and the provincial governments, or between provincial governments. The practice of equalization is one of the distinctive features of Canadian polity and is a development that has been healthy for Canadian unity and a sense of national identity.
The need for equalization through taxation and sharing measures is obvious in a federal country where the natural and human resources to meet the needs of people are distributed unevenly. While it is important to provide a balance between regions through equalization grants, the fundamental concern is to ensure that all individuals and families across the country are brought up to a basic physical standard of living and are assured of basic services related to health, education and old age.
For over a decade The United Church of Canada has supported the concept of the Guaranteed Annual Income and other related income security measures. In addition we have supported medicare, social housing, and employment opportunity programs.
If there is to be a constitution which guarantees human rights and equalization, it is our opinion that the section on equalization must have a footing in the Charter of Rights and Freedoms with a section on the rights of individuals and families to a basic standard of living and social security. (See Article 25 Universal Charter of Human Rights)
A charter of human rights should properly include the right to work, the right to a minimum standard of housing, the right to a minimum standard of nutrition and the right to a minimum income. Other rights are hollow without these rights, and in turn the denial of basic living standards and services becomes the source of extremism and disunity.
V. THE RIGHTS OF WORKERS TO JOIN OR FORM UNIONS AND TO JOIN IN COLLECTIVE ECONOMIC ACTION
The right of workers to join or form unions is basic. The denial or suppression of workers’ rights to (a) become part of a collective bargaining unit or (b) withold labour during a legal strike, is indispensable in a free society.
These rights should be ensured in a framework of law that will protect both the workers within a particular enterprise and the larger public. We do not minimize the complexities that surround the guarantee of these rights. Every right is a standard to be upheld in the context of competing rights. We contend, nevertheless, that workers in every sector of the economy have the right to enter into collective bargaining associations for their mutual protection and benefit. States which suppress the rights associated with collective bargaining inevitably go on to suppress other human rights. The whole fabric of human rights is weakened unless these rights are ensured. (See Article 23(4) Universal Declaration of Human Rights).
1. The Executive of the General Council of the United Church of Canada believes that the creation of a Canadian Constitution that will reflect the aspirations of both majorities and minorities can be best achieved through an unhurried process of participation by many groups.
2. Section 24 (or another section) of the proposed Constitution should set forth, in detail, guarantees with respect to the aboriginal and treaty rights of native peoples. Representatives of aboriginal nations should be full members of all future constitutional talks.
3. A Charter of Rights and Freedoms should include sections on the rights of refugees, immigrants, and inmates of penal and mental institutions. The rights of the physically and mentally disabled should be stated. Discrimination on the basis of sexual orientation should be prohibited.
4. The basic purpose of equalization should be identified in the Charter of Rights and Freedoms under a section on the right to minimum standards of housing, nutrition, income and services.
5. A Charter of Rights and Freedoms cannot serve its intended purpose without including a section on the rights of workers to join unions and take collective economic action.
RECOGNITION AND ENTRENCHMENT
OF TREATY AND ABORIGINAL RIGHTS
AND INDIAN GOVERNMENT
WITHIN THE CANADIAN CONFEDERATION
The Federation of Saskatchewan Indians December 1980
As the original people of this land, our feelings towards treaty and aboriginal rights differ considerably from those of non-Indians in Canada. To us they represent sacred covenants by which our forefathers agreed, albeit under duress, to permit Europeans merely to co-habit with us on this land. However, the European settlers have consistently acted through their institutions to debase these original understandings. Not being content just to question the extent of our rights, they now frequently engage in astounding debate to actually call into question the very existence of these rights.
This relentless process of attrition of our rights has been effected through the pervasive powers of the Canadian state. Legislators have treated us as objects in a tutelary and paternalistic fashion pursuant to. ‘The Doctrine of Discovery” while ignoring and often overriding the most sacred undertakings. As the same time, the judicial arm of government has also consistently used alien concepts to further distort and eviscerate our heritage. Whereas our fore-fathers reposed treaty trust in the Crown, the servants of the Crown, the Executive, have marvellously arrogated to themselves the capacity to continue the divestiture of our rights by the implementation of policies heavily biased towards non-Indian interests.
We do not seek to renegotiate the treaties. We do however, seek entrenchment of our aboriginal and treaty rights in the constitution, not by the Canadian Parliament, but by the Parliament of Great Britain.
In recent months there has been considerable debate among the Indian nations in relation to the specific mechanism to achieve this goal. The result has been the enunication of a set of principles by the First Nations Constitutional Conference held in April of 1980, and which was ratified by the 11th Annual National Indian Brotherhood General Assembly in August of 1980. The principles declared:
1. We are nations. We have always been nations.
2. As nations, we have inherent rights which have never been given up.
3. We have the right to our own forms of governments.
4. We have the right to determine our own citizens.
5. We have the right to self-determination.
6. We, through our governments, shall have full coritrol of our land. “Land” includes water, air, minerals, timber and wildlife.
7. We wish to remain within Canada, but within a revised Constitutional framework.
8. The negotiations to revise the Canadian Constitution shall have full and equal Indian involvement at all levels and stages of negotiations.
9. The rights of Indian Nations as nations must be entrenched and protected in the Canadian Constitution.
10. In the treaties, our nations place themselves under the protection of the Crown. In establishing this protectorate relationship, they share some of the powers and they did not give up or surrender their sovereignty.
11. Our treaty rights must be entrenched and protected in the Canadian Constitution.
12. We seek to end our economic dependence on others. To do this, we need enough land and resources to provide an economic base for the present and the future.
13. Our governments have the right to share in all the revenues from this land and its resources. A sound financial base is required for the full operation of any government.
14. Neither the Federal Government of Canada nor any provincial government shall unilaterally affect the rights of our nations of our citizens.
The Federation of Saskatchewan Indians, on the 27th day of November, 1980, affirmed these principles through the following declaration:
As an Indian sovereign nation having the powers to make a binding treaty with the Crown of England, Her heirs and successors, we herewith declare that the aboriginal rights, the rights to trust in accordance to treaty, the rights to protection in accordance to treaty, the rights to self-government, the treaty rights of all Indians under treaty, be formally recognized and entrenched between the Indian nation and Great Britain, the Imperial Crown, and that any constitutional amendment, now or in the future, be in accord with the intent of this declaration.
We, the First Nations, accordingly, do hereby proclaim our dedication and commitment to the recognition of our unique history and destiny within Canada by entrenching our treaty and aboriginal rights within the present or renewed constitution. Only in this way can we trully fulfill the sacred obligations handed down to us by our forefathers for future generations. Anything less would result in the betrayal of our heritage and destiny.
ENTRENCHMENT OF TREATY AND ABORIGINAL RIGHTS
“Notwithstanding any provision in the Canada Act or in the Constitution Act or in any other Act, and being cognizant that the solemn undertakings made to Canada’s Aboriginal Peoples in the Royal Proclamation of 1763 and in prior and subsequent
treaties, between such peoples and the Crown are inviolable, it is hereby declared that no law of any Province, and no law of the Parliament of Canada, heretofore or hereafter enacted, shall be interpreted so as to abridge, abrogate, repeal, or extinguish any provisions of a treaty; or any commitments made in the course of negotiations resulting in a treaty; or any commitments made in the course of negotiations resulting in a treaty; or any treaty or aboriginal rights and, without limiting the generality of the foregoing, more specifically, those treaty or aboriginal rights relating to land, government or culture.”
Notwithstanding anything in this Act (including any other non abstante clause), the Indian Government legislature may make laws applying on or off reserves in relation to:
1. Indian Governement constitutions and the amendments thereof, and amendment will be passed on the recommendation of a majority of the Indian legislature ratified by a three-fifth majority of the regional Indian Governments,
2. Band membership, status and citizenship and the incidents of residence on Indian lands,
3. Education, cult ure and language,
5. Family law including marriage, divorce, custody, maintenance and adoption,
6. Taxation, both direct and indirect,
7. Hunting, fishing, trapping and gathering,
8. Trade and commerce in relation to Indians and Indian lands, and related Indian matters,
9. The incorporation of companies and labour,
10. Criminal law and procedure,
11. The administration of justice and establishment of Indian courts,
12. The appointment of Indian judges including those with superior court status.
13. Property and civil rights of Indians,
14. Any other matters affecting Indians and Indian lands,
Except as otherwise provided by the Indian Government legislature, all laws in force in Canada and the respective provinces shall continue to apply, insofar as they relate to matters within the jurisdiction of the Indian Government legislature, subject nevertheless to be repealed, abolished or altered by the said legislature pursuant to the authority conferred upon it.
INDIAN RIGHTS PROTECTION OFFICE
“The Indian Rights Protection Office has the powers of a superior court to finally determine all matters within the exclusive legislative jurisdiction of Indian Government.”
1. Indian Government will be conducted on the basis of tribal decision-making, with the First Nations’ Assembly acting to advance general Treaty and Aboriginal interest, with the Tribal, District and Provincial Chiefs’ Councils acting within the ambit of their respective territorial authorities.
2. The Indian Government legislature shall consist of the First Nations Assembly, with the Queen as head of state and as Protector of Indian rights and treaties.
3. Ececutive federalism shall be promoted by consultation between the Queen in the right of the Indian Government legislature, the Queen in the right of Canada and the Queen in the right of the Provinces.
4. Residual power over Indian matters remains vested in the Queen in the right of the Parliament of the United Kingdom.
It is hereby acknowledged ‘and affirmed that Natural resources reserved under Treaty and Aboriginal rights continue to be vested in Indian people, and they shall not be deprived thereof except expressly and with compensation payable therefore as decided by the Indian Rights Protection Office.
See PDF for graphics.
From the Church of Jesus Christ of Latter Day Saints:
Mr. Bruce Smith, President of Toronto Ontario East Stake;
Mr. Regan Walker, Executive Secretary, Toronto Stake;
Mr. Maleolm Warner, President, Hamilton Stake.
From the National Anti-Poverty Organization:
Mrs. J. Hartling, Executive Director.
From the Public Interest Advocacy Centre:
Mr. Nick Schultz, Associate General Counsel.
From Alliance for Life:
Mrs. Karen Murawsky, Past Vice-President;
Dr. Paul de Bellefeuille, M.D., Associate Professor of Pediatrics, University of Ottawa;
Major John J. H. Connors, LL.B., Consultant.
From the Canadian Citizenship Federation:
Mr. Nicolas Zsolnay, President;
Prof. J. B. Rudnyckyj;
Mr. Eric L. Teed, Past President.
From the Federation of Independent Schools in Canada:
Mrs. Molly Boucher, President;
Mr. Patrick Whelan, Treasurer;
Mr. Garry Outhier, Director.
From the United Church of Canada:
Dr. Clarke MacDonald, Senior Secretary-Office of Church in Society;
Rev. Robert Lindsey, Associate Secretary-Division of Mission in Canada;
Rev. Guy Deschamps, French-English Relations Officer.
From the Federation of Saskatchewan Indians:
Mr. Saul Sanderson, Chief of Federation of Saskatchewan Indians;
Senator John B. Tootoosis, Senator of Federation of Saskatchewan Indians;
Mr. Kirk Kickingbird, Legal Counsel;
Ms. Delia Opekokew, Legal Counsel;
Mr. Rodney Soonias, Legal Counsel;
Mr. Doug Cuthand, First Vice-President.
From the Indian Association of Alberta:
Mr. Eugene Steinhauer, President;
Mr. Charles Wood, Chiefs Constitution Committee for Alberta;
Mr. John Snow, Chief from Treaty 7;
Mr. Willy Littlechild, Legal Counsel.
From the Canadian Consultative Council on Multiculturalism:
Mr. Lawrence Decore, Chairman;
Mr. Errol Townshend, Chief Editor of “Cultures Canada”.
From the Canadian Association of Social Workers:
Dr. Richard Splane, President;
Ms. Gweneth Gowanlock, Executive Director.