Document Information

Date: 1970-06-11
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, 28th Parl, 2nd Sess, No 3 (11 June 1970).
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Second Session

Twenty-eighth Parliament, 1969-70

—————

THE SPECIAL JOINT COMMITTEE

of

THE SENATE

and of

THE HOUSE OF COMMONS

on the

CONSTITUTION OF CANADA

Senator

MAURICE LAMONTAGNE

Joint Chairmen

MARK MacGUIGAN

M.P.

—————

MINUTES OF PROCEEDINGS

AND EVIDENCE

No. 3

—————

THURSDAY, JUNE 11, 1970

—————

WITNESSES

(See Minutes of Proceedings)

[Page 2]

SPECIAL JOINT COMMITTEE ON THE CONSTITUTION OF CANADA

Senator

MAURICE LAMONTAGNE

Joint Chairmen

MARK MacGUIGAN

M.P.

Representing the Senate

Senators

Connolly (Ottawa West),

Cook,

Flynn,

Giguère

Grosart,

Lang,

Macdonald,

Phillips (Rigaud)

¹Yuzyk—10.

Representing the House of Commons

Messrs.

Alexander,

Allmand,

Asselin,

Baldwin,

Breau,

Brewin,

Dinsdale,

Fortin,

Gibson,

Hogarth,

Hopkins,

Lachance,

Lewis,

Marceau,

McQuaid,

Osler,

Ouellet,

Roberts,

Woolliams—20.

(Quorum—17)

Michael B. Kirby,

Patrick J. Savoie,

Joint Clerks of the Committee.

¹Replaced Senator Macdonald (Cape Breton) June 11, 1970.

[Page 3]

ORDER OF REFERENCE OF THE SENATE

Extract from the Minutes of Proceedings of the Senate.

THURSDAY, June 11, 1970.

With leave of the Senate,

The Honourable Senator Smith moved, seconded by the Honourable Senator Choquette:

That the name of the Honourable Senator Yuzyk be substituted for that of the Honourable Senator Macdonald. (Cape Breton) on the list of Senators serving on the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada; and

That a Message be sent to the House of Commons to acquaint that House accordingly.

The question being put on the motion, it was—

Resolved in the affirmative.

ATTEST:

ROBERT FORTIER,

Clerk of the Senate

[Page 4]

ORDER OF REFERENCE OF THE HOUSE OF COMMONS

THURSDAY, June 11, 1970

Ordered,—That the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada be empowered to retain the services of three specialists to assist (a) in organizing its work, including its meetings beyond the precincts of Parliament; (b) in analysing the material presented to it or already available; (c) in helping generally in the course of the Committee’s work, that it be empowered to retain such other expert staff as well as the necessary clerical and stenographic help deemed advisable, and that on the assumption that the Special Joint Committee will be appointed in the next and the next ensuing sessions, and in order to safeguard the continuity of the Committee’s work and research, that the Committee be empowered to retain the services of the above personnel until the Committee has concluded its work or until December 31, 1971, whichever is sooner.

ATTEST:

ALISTAIR FRASER,

The Clerk of the House of Commons.

[Page 5]

MINUTES OF PROCEEDINGS

THURSDAY, June 11, 1970.

The Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada met this day at 3:54 p. m. The Joint Chairman, Mr. MacGuigan, presided.

Members present:

Representing the Senate: Senators Cook, Grosart, Lamontagne and Yuzyk—(4).

Representing the House of Commons: Messrs. Alexander, Allmand, Brewin, Gibson, Hopkins, Lachance, MacGuigan, Marceau, McQuaid, Osler and Woolliams—(11).

Witnesses: Mr. B. L. Strayer, Director of Constitutional Review Section, Privy Council Office; Mr. Jules Léger, Under Secretary of State; and Mr. M. F. Yalden, Assistant Under Secretary of State.

In attendance: Mr. T. B. Smith, Director, Advisory and International Law Section, Department of Justice; From the Privy Council Office, Constitutional Review Section: Miss J. Loranger, Mrs. L. Ratushny, Legal Assistant; and Mr. K. Lysyk, Adviser.

The Joint Chairman introduced the witnesses. Mr. Strayer made a statement on “A Canadian Charter of Human Rights” and that part of “The Constitution and the People of Canada” dealing with fundamental rights, after which he and the other witnesses were questioned.

During questioning, it was

Agreed,—That the booklet entitled “Background Papers on Fundamental Rights”, prepared by the Secretariat of the Constitutional Conference be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “B”),

[Page 6]

The questioning of the witnesses being completed, the Joint Chairman thanked them on behalf of the Committee. They were excused.

At 5:45 p.m. the Committee adjourned to Tuesday, June 16, 1970.

Michael B. Kirby,

Joint Clerk of the Committee.

[Page 7]

EVIDENCE

(Recorded by Electronic Apparatus)

Thursday, 11 June 1970          

• 1552

The Joint Chairman (Mr. MacGuigan): The meeting will come to order, Gentlemen, first we should welcome to our midst Senator Yuzyk, who has just joined the Committee.

Senator Yusyk: Thank you very much. I have been attending.

The Joint Chairman (Mr. MacGuigan): We have noticed that and you have asked questions, but we are pleased now to have you as an official member of the Committee.

Senator Yuzyk: I am replacing Senator Macdonald, sir.

The Joint Chairman (Senator Lamontagne): We already are losing new Fathers of Confederation.

An hon. Member: We are getting Sons of Confederation.

The Joint Chairman (Mr. MacGuigan): The general subject for discussion today is A Canadian Charter of Human Rights and that part of The Constitution and, the People of Canada dealing with fundamental rights.

We are privileged to have as our witnesses Dr. Barry L. Strayer and Mr. Jules Léger. Dr. Strayer’s present title is Director of Constitutional Review, Privy Council Office. I understand he is also Director of the Constitutional Law Section, Department of Justice, on loan to the Privy Council Office. Before coming to Ottawa Dr. Strayer was a noted law professor and is the author of a book Judicial Review and Legislation in Canada.

I understand Dr. Strayer will make a presentation and Mr. Léger will join him in being available to reply to any questions which may be addressed, particularly on the subject of linguistic rights.

Mr. Léger’s name is so well-known as to hardly need any introduction in this forum, He has been Under Secretary of State for External Affairs and is now Under Secretary of State in the Department of the Secretary

[Page 8]

of State. He has been ambassador to NATO, to Italy and to France, and comes to us with a wealth of foreign as well as domestic experience.

Without any further introduction I would ask Dr. Strayer to introduce the subject to us.

Dr. B. L. Strayer (Director of Constitutional Review, Privy Council Office): Thank you, Mr. Chairman. Perhaps I first should remind the members of the sequence in which these two publications, A Canadian Charter of Human Rights and The Constitution and the People of Canada, appeared. The first one was A Canadian Charter of Human Rights, which was published at the time of the Constitution- al Conference in February 1968. It tends to be a general treatment of the subject of a constitutional Bill of Rights. It deals with the general principles involved in having a constitutional Bill of Rights and discusses some possible content for such a Bill. But it does not attempt to suggest any specific provisions for a Charter of Human Rights; that is, it does not attempt any drafting.

The other document, The Constitution and the People of Canada, which was published in February 1969, a year later, does contain a section setting out some proposed terms for a Charter of Human Rights, although those first were also put forward as tentative proposals and not as final drafts for the Charter. They were put forward for discussion purposes.

I first would like to deal with the basic reasons for the proposal that we should have a Charter of Human Rights. I think I would relate my comments on this point largely to Chapter 2 of the first document, namely the document entitled A Canadian Charter of Human Rights.

In that document we make some basic arguments for the establishment of a Charter of Human Rights in the Constitution. It is pointed out that the existing provisions in Canadian public law, or in Canadian law generally, for the protection of human rights have certain limitations. The paper is not suggesting that heretofore there have been no human rights or that heretofore there has been no legal protection of human rights, but rather points out some of the difficulties and shortcomings as were seen by the government in the existing structure.

It was pointed out that although there are many statutes, both federal and provincial, which protect human rights in one way or another, these statutes do not limit the power of Parliament and legislatures. I will be returning to this point later on. But these are

[Page 9]

legislative measures which can be altered subsequently by legislative bodies.

Associated with that point is the point that these provisions thereby lack permanency because in theory they can be repealed overnight by legislative action. I suppose that is overstating the case because legislative action does not happen overnight, but at least in theory they can be removed as quickly as any other statute.

In particular we discussed in the paper the 1960 Canadian Bill of Rights that was enacted by the Parliament of Canada, pointing out that it was a very significant advance in the expression of human rights in Canada and in their protection, but that, like the other measures which had been mentioned in the paper, it is not a constitutional act and not a constitutional instrument in the sense that it would limit the power of Parliament for the future. It is open to Parliament to alter the Canadian Bill of Rights and to take away the Declaration of Human Rights that was stated therein if Parliament should see fit to do so. As improbable as it might seem to most people that it would do this, nevertheless in law it is entitled to repeal any statute that it has passed, and this would also apply to the Canadian Bill of Rights.

Moreover the 1960 Bill of Rights has no application to the provinces, therefore it does not in any way protect human rights which may be affected by provincial legislation or the application of provincial power.

Another shortcoming which, was suggested, exists in the 1960 Bill of Rights is that it does not clearly override previous statutes that is, statutes which have been enacted before the Canadian Bill of Rights of 1960.

• 1600

That criticism may have lost some of its force or a good deal of its force because of the recent decision in the Supreme Court in the case of the Queen versus Drybones—Regina vs. Drybones—which was handed down in November of 1969. The document which I am referring to, the Canadian Charter of Human Rights, had been prepared about two years prior to that decision in the light of the jurisprudence as it then stood. Now it seems fairly clear from the recent Supreme Court decision on Drybones that the court may in future examine statutes which had been enacted before 1960 and measure them up against the Canadian Bill of Rights and may override them to the extent that they do conflict with the Canadian Bill of Rights.

Senator Grosart: Excuse me, Dr. Strayer, would you say that this largely negates the comments on pages 13 and 14 of the document, A Canadian Charter of Human Rights?

[Page 10]

Dr. Strayer: I would say, Senator, that it negates much of what is at the bottom of page 13 and the top of page 14. I think that many of the other arguments which are made in this chapter remain now in that in spite of the Drybones cases, The Canadian Bill of Rights does remain a statute which is subject to alteration by Parliament if Parliament decides to alter it. And it still does not apply to the provinces so to that extent, it…

Senator Grosart: I was referring only to the interpretation of the courts up to the time this was published—interpretation of court decisions.

Dr. Strayer: Well, my own view would be that the argument made there it does negate that, yes.

Senator Grosart: You have made your point.

Dr. Strayer: I suppose it may take some time to see just how the court applies its decisions in subsequent cases. We have seen what seemed to be variations in the attitude of the court towards the Bill of Rights and I suppose that it is a bit too early to judge just how the Drybones case may be followed up.

It was proposed in this same document, A Canadian Charter of Human Rights, that there ought to be a charter which would be entrenched in the constitution. This would mean that it would find expression in a constitutional document rather than as an ordinary statute. As part of the constitution it would gain a certain prestige. It would be more difficult to amend than ordinary laws; it would be subject to the amending process which would be applied to the constitution.

And now we probably can assume that whatever amending procedure may ultimately result, there will be some parts of the constitution which will be more easy to amend than others and I am not sure what one should assume about the part which might constitute The Canadian Charter of Human Rights. I think that many people assume that it would be more difficult to amend; by whatever formula is devised, it will be made more difficult to amend than other parts of the constitution, although some arguments have been made such as in the McRuer Royal Commission Report from Ontario that perhaps if there are to be any entrenched human rights in the constitution, they should be more easy to amend than other parts of the constitution. So that is still a debatable point.

[Page 11]

As a part of the constitution, the charter would override laws, both of Parliament and of the legislatures—this point was made in our document of 1968—and it would apply, as I said, to the provinces as well as to Parliament. This was seen as having a number of advantages. It would make uniform the rights of Canadians from coast to coast in these matters. It would also avoid some of the complexity and difficulties which have arisen in the past in trying to deal with some of these civil rights cases where it has been unclear which jurisdiction had the power to legislate, to limit or affect civil rights. Here you would have a guarantee which would apply equally to both jurisdictions and in some cases it might not be a matter of debate then which legislative body might otherwise have had the power to limit civil rights.

I think these points can be elaborated more if I turn to the other document, namely, the Constitution and the People of Canada, the one which was published in February of 1969 and put before the Constitutional Conference at that time because in the part dealing with fundamental rights, namely from pages 50 to 63 of this document, an attempt was made to propose some terms for a charter, and as I said before, these were not put forward as a final version, a final draft, but it was felt that the discussion could be advanced if the federal government for its part were to put forward a specific text and that it would be easier to discuss the conflict if we put a text before the other governments. So that is what was done.

One must keep in mind in looking at this that there are infinite possibilities for revising the terms of the charter. So far there has not been, I think it is fair to say, sufficient agreement in principle that we ought to have such a charier; that it has been possible to concentrate simply on the wording. There has been some discussion of wording but there has also been mixed with that a good deal of discussion about the principle.

I might mention in dealing with the subject that in approaching it with the idea of pre- paring some sort of draft, it was necessary to consider a number of options. There are many examples which one may find in the world of statements of human rights and charters of human rights and conventions on human rights.

I think you will find in the appendix of the earlier document, A Canadian Charter of Human Rights, a great number of examples from various sources, including the 1960 Canadian Bill of Rights, of course, and The Universal Declaration of Human Rights of the United Nations. I would particularly direct

[Page 12]

your attention to The European Convention on Human Rights which appears at page 141 of that document, the bigger document, and the Amendments to the United States Constitution which appear starting at page 163.

I mention those two because they provided a good deal of the inspiration for statements of human rights around the world. In the first place, one will see basic contrast in the way the rights are stated. In the Amendments to the United States Constitution, the rights are stated generally. They are stated without a lot of elaboration but simply as general principles which have been elaborated by the courts over the years in reference to specific cases.

On the other hand, in the European Convention on Human Rights, you find that the rights are described in more detail and they are qualified generally, so that where you have a statement for example of the right of freedom of speech, you also have a number of qualifications attached to it which will indicate to the courts and to others to what extent these rights may be limited and in what circumstances they may be limited. I mught direct your attention particularly to Article 10 of the European Convention which appears at page 144 of the document, A Canadian Charter of Human Rights, where the right to freedom of expression is stated. Then in the second subsection of that article there are the grounds stated upon which the right may be limited. It says:

(2) The exercise of these freedoms—may be subject to such—restrictions—as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

I just mention that as an example of a way in which rights may be described more elaborately and qualifications suggested more specifically.

So it was necessary in considering how this proposed Canadian charter might be drafted to make some decisions or to consider the options which might be available in the style of drafting. I think that you will find in look-

[Page 13]

ing at what has been done that there is perhaps no perfect consistency because the rights expressed in section 1 of the proposed charter tend to be expressed rather generally, somewhat in the style of the American Constitution, whereas some of the rights such as those under section 3 dealing with discrimination and section 4 dealing with language rights tend to be described much more specifically and somewhat in the style of the European Convention.

• 1610

I might also mention that the European Convention is significant again in that it has been the model for a number of modern constitutions where basic constitutions have made provision for guarantees of fundamental rights. A number of the newly-independent countries have adopted the European Convention. Most of the non-European countries have adopted the provisions of the European Convention or have taken parts out of the European Convention as a model for their own constitution.

Another option which had to be considered In drafting such a thing is choosing between a positive statement of rights and a negative statement of rights. The positive statement being something like “there shall be a right of freedom of conscience” or something like this. The negative form being “Parliament shall hot interfere with freedom of conscience”. Again, the former approach is more that of the European Convention. The latter approach is more that of the U.S. Constitution, which sets out in the amendments a number of prohibitions as to what Congress and the States may not do. The positive form is generally used in the draft, which is set out here in this publication The Constitution and the People of Canada.

Another question which had to be considered is whether the—rights ought to enforceable, not only against governments but also against individuals. In the amendments to the American Constitution, the rights are generally only technical laws against governments. You will find in the draft which has been proposed by the Government of Canada here that the rights are stated in such a way that they could be, where if it were relevant, applied against individuals as well, that is, individuals who might want to interfere with those rights. I might return to that a little later when I discuss Section 3, which sets out a situation where private discrimination and private interference with human rights might be as important or as much of a problem, or more of a problem than public interference. But you will find that by the rights being set

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out in a positive way, they potentially apply against not only the governments of Canada, but also the citizens as between themselves.

A fourth question which had to be considered was that of the means of enforcement of human rights. Again there are some options which are available. The U.S. constitution could have been used as a model. You find that in amendments 13, 14 and 15 of the U.S. constitution, for example, that certain guarantees are imposed as against the states. The prohibition against the State denying its citizens equal protection of the laws, for example, is in the amendment 14. In amendment 13 there is a guarantee with respect to involuntary servitude and in amendment 15 there is a guarantee prohibiting discrimination in voting rights on account of race. In each of these cases, Congress is given power to enforce the article by appropriate legislation.

Some concern was expressed at an early stage by some of the provincial governments that any proposed charter of human rights would involve the federal government in an enforcement which would really enlarge the powers of the federal government and, particularly, the powers of Parliament to legislate in matters over which it would not otherwise have any jurisdiction. For example, if the charter did guarantee freedom against discrimination with respect to education, then Parliament might thereby be enabled to legislate on the subject of education in order to enforce the charter.

The decision was made in preparing this charter that this result should be avoided and that the charter itself should be in part self-executing in that it would declare that laws or acts of any sort which conflicted with the rights in the charter would be invalid and the courts could strike down such laws whether they were the statutes of Parliament, statutes of legislatures or, perhaps, contracts between private individuals. The Courts could treat them as being invalid. Beyond that, if there were any further legislation declared or any further legislation required or any further executive action required, this should be left to the federal government or the provincial government depending on the normal distribution of powers.

I will point out the section which deals with that question as I take a quick look through the charter in a moment. I want to register what I think is an important point here. The charter does not purport to eliminate other means of protecting human rights. I say this because there has been a good deal of criticism from some quarters about the charter on the basis that it does not do everything that

[Page 15]

needs to be done in the field of human rights. I only want to observe at this point that it does not purport to do everything that needs to be done in the field of human rights; it leaves open the question of enforcement and protection and enhancement and even the development of new rights to Parliament and the legislatures acting in the exercise of their normal jurisdiction.

I should, I think, refer briefly to the nature of the provisions in the draft charter commencing on page 50 of The Constitution and the People of Canada. In the first section is included most of the matters which are included in the first section of the 1960 Canadian Bill of Rights, the statute passed by Parliament. There are a few changes in the wording, and I should bring those to your attention. In subclause (a) the new draft speech says “freedom of conscience”. The word “conscience” was added in subclause (a) of Clause 1, it being thought that “freedom of religion,” perhaps, was a bit too restrictive in that it might be equally important to guarantee freedom of other kinds of belief as well as religious belief, including the belief in no religion and, therefore, “freedom of con- science” was added to that subclause.

On the next page, subclause (e), there is a significant change in the draft speech there:

(e) the right of the individual to life, and the liberty and security of the person,…

The 1960 act speaks of “life, liberty, security of the person and enjoyment of property”. This is the significant “due process’ clause. The reason it is infringing was made in the terminology here. “Due process” has created problems, particularly under the American Constitution in relation to liberty and property. It has been used at times by the courts to strike down legislation which the majority of Americans apparently regard as being socially desirable. This was particularly true in the first part of the century up until the mid nineteen-thirties.

If one analyzes those cases, it appears that a good deal of the problem has been created by the concept of what is known as substantive due process. The idea that every law can be tested by the court to see whether it meets certain standards of fairness and that particularly the property rights are adequately protected and the liberty of contracts is adequately protected. It was felt that this was one of the most frequently criticized areas of the American constitutional guarantees and that this was something which could be improved upon in the draft. I can elaborate

[Page 16]

on that later but I think I might leave it at that.

• 1620

Senator Grosart: What is the new wording?

Dr. Strayer: It is now:

I the right of the individual to life, and the liberty and security of the person, and the right not to be deprived thereof except by due process of law;

The change attaches the concept of liberty to that of security and relates it to the person. This avoids the problem of the interpretation of liberty which under the American Constitution has been interpreted to include liberty of contract and has been used to strike down legislation which provided for things such as minimum wages and protection against the employment of child labour and this sort of thing.

The Joint Chairman (Mr. MacGuigan): That is what I just point out to members if they have the two documents. The present Canadian Bill of Rights starts on page 83 of A Canadian Charter of Human Rights, and the proposed new one starts on page 50 of The Constitution and The People of Canada.

Senator Grosart: The changes that Mr. Strayer is mentioning are included in the edition that we have before us.

Dr. Strayer: Yes, in this book.

And the reference to property has been eliminated from this clause and is dealt with under the next clause, that is section 1 (f):

(f) the right of the individual to the enjoyment of property, and the right not to be deprived thereof except according to law;

You will notice that here the guarantee is put in terms of “except according to law” rather than “except by due process of law”. This again was to avoid the problem of substantive due process, as the American constitutional lawyers call it, to avoid some sort of external test of fairness being applied to legislation rather than allowing the legislative body to decide on questions of policy related to let us say expropriation of property or this sort of thing in terms of compensation. Under the American system, it has on occasion been a matter for the courts to decide whether the compensation has been adequate.

To take perhaps a more simple example, the American courts have reviewed decisions of bodies which fixed rates for public utilities

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and have decided whether the rates which the regulating commission has set are sufficiently compensatory for the utility. The court has taken upon itself the power to decide whether the utility is earning enough money. That is an example of substantive due process, and that is the sort of thing which it was hoped could be avoided in this draft.

On the other hand, reference to due process and process according to law can be given a procedural importance. Procedural due process really is simply a guarantee of a fair hearing and that sort of thing. Looking again at the example of the Commission, if we preserve only procedural due process in these situations, we will still be guaranteeing the right to a fair procedure, but we may avoid some of the problems connected with substantive due process by taking property out of the due process clause and simply giving the individual a guarantee with respect to property of the right not to be deprived of the right except according to law. I might add that this term “according to law” is something which has been used in the Indian constitution and has been given the kind of interpretation which it was thought was best under the circumstances here.

Under clause (g) there is a reference to “equal protection of the law”. This again differs from the 1960 Bill which included in it a guarantee of the individual to equality before the law. Again the problem we found with the 1960 Bill may to some extent have been eliminated by the Regina versus Drybones decision in the Supreme Court last November, because prior to the Drybones case, the interpretation given to “equality before the law” in the case of Indians, for example, had been that as long as every Indian was treated like every other Indian he was receiving equality before the law even though his race might as a race be treated totally differently from other citizens of Canada.

In the Drybones case in the Supreme Court last November, it was decided that this was not in fact the proper interpretation of equality before the law and that it could be interpreted to mean that if an Indian in the North-west Territories was subject to penalty for doing something for which other people were not subject to penalty, namely, drinking off the reservation or being intoxicated off the reservation whereas non-Indians could not be subject to this particular penalty, then the Indian was not receiving equality before the law. I am not sure therefore whether there is

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now a great deal in the distinction between equal protection of the law and equality before the law, and this is certainly something which will have to be considered as and when we get closer to refining these drafts of the Cha On Section 2 of the Charter I think when we get closer to refining these drafts of the Charter.

On Section 2 of the Charter I think it is fair to say that virtually all of it is identical to Section 2 of the 1960 Canadian Bill of Rights with a couple of exceptions. Clause (a) is new; there has been added there:

(a) the right of the individual to be secure against unreasonable searches and seizures;

Clause (g) is also new. This is a clause which in effect is a guarantee against people being subject to retroactive legislation which could create offences retroactively or increase the penalties retroactively for some offence which they had committed already. Apart from that the section is essentially the same as Section 2 of the Canadian Bill of Rights 1960.

Section 3 is a section dealing with discrimination. The nonpermissible criteria for discrimination are similar to the 1960 Act, namely:

…race, colour, national or ethnic origin, religion, or sex

I think that the term “ethnic origin” has been added since the 1960 Act. You will notice, though, that there are certain situations in which discrimination is not to be permitted:

(a) in employment or in membership in any professional, trade or other occupational association;

(b) in owning, renting, holding or otherwise possessing property;

(c) in obtaining public accommodation, facilities and services.

In Section 4 are the language guarantees and linguistic guarantees. Clause (a) refers to the use of either language in the Houses of Parliament. Clause (b) refers to the records, journals and enactments of Parliament and legislatures. I should make a point of explaining why the provinces were selected as they are in these clauses. You will find that in Clause (b) and in two or three subsequent clauses there are three categories of provinces referred to in which the guarantees might apply. This follows a pattern recommended by the Book I Report of the Royal Commis-

[Page 19]

sion on Bilingualism and Biculturalism, namely that language rights and guarantees ought to exist in New Brunswick, Ontario and Quebec, in a legislature of any province in which at least 10 per cent of the population speaks one of the official languages; that is where there is an official language monority [sic] of at least 10 per cent. And also in any province where the legislature of the province has declared the province to be bilingual officially.

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Now that pattern applies in Clause (b) dealing with the records and enactments of all the legislatures. It applies in Clause (c) where provisions are made for the right of the individual to use either language in certain courts, and essentially these are either the courts of Canada created under federal law or the superior courts of these various provinces which I referred to earlier. Again in Clause (d) we have another kind of language right, that is the right of communication in either language with the head office of every department agency of the federal government, with the head office of every department and agency of these other provinces as set out, that is, the provinces which are officially bilingual. And then in Subclause (v) we have provision for communication in either language with the principal offices of every department and agency of the federal government and of provincial governments in any area where a substantial proportion of the population has the language of his choice as its mother tongue.

That is an attempt to set out, in a general way, the principle of bilingual districts, but without adopting the formula laid down by the B and B Commission, it being felt that this was much too detailed for a constitutional document. The thought in this clause is that we have a principal status, which could be implemented by the means recommended by the B and B commission, but it could be implemented perhaps in other ways which some provinces might feel better suited to their needs.

Section 5 states the important principle that neither Canada, that is Canada in all its manifestations of Parliament or the federal government, the executive branch of government, or any province, that is the province in its official manifestations also, may abrogate or abridge any of the rights of freedom set

[Page 20]

out in this Charter. It is made quite clear that any law which does purport to do that or has that effect would be invalid to that extent.

Section 6 is a provision which seeks to clarify the issue that I mentioned earlier, that is to seek to make it clear that the Charter should not have the effect of transferring jurisdiction from legislatures to Parliament or vice versa. That is, the Charter should not affect the distribution of powers. That is made clear in Section 6.

Section 7 provides that the rights guaranteed under the Charter may be abridged by Parliament in time of emergency, that is in time of a state of war, invasion or insurrection, real or apprehended. It will be noted that there would have to be two requirements met for the provisions in the Charter to be suspended. First, that Parliament would have to have declared a state of war, invasion or insurrection to exist, and secondly, that Parliament would have to state expressly that it intended to abridge the rights notwithstanding the guarantees in the Charter.

I think, Mr. Chairman, that that covers in a very brief fashion the contents of the proposed Charter. I would just make one other point. This particular Charter’s provision or proposal was discussed in the February 1969 session of the Constitutional Conference and at that time the decision was taken to set up a ministerial committee on fundamental rights to examine this whole question more thoroughly. That committee was later set up. There is a committee chaired by the Minister of Justice meeting with provincial ministers and it has had two meetings. The committee reported formally to the December 1969 Constitutional Conference and the report is set out in this red book which has been provided to you by the Secretariat of the Constitutional Conference under Tab 10. It sets out the reports from the ministerial committee. I do not know that I will go into that now, but if there are questions about that report, I could come back to it later.

The Joint Chairman (Senator Lamontagne): It might be a good thing if you were to give us just the gist of this, because we only received this document yesterday and some members may not have been able to see it yet.

Senator Grosart: Mr. Chairman, I notice that it is headed “A Briefing Paper on Discussions within the Continuing Committee of Officials” rather than the ministerial committee at Tab 10, if I have the right document.

[Page 21]

Dr. Strayer: There are several documents under Tab 10, Senator. I think it is the second document after the one that you are looking at.

The Joint Chairman (Mr. MacGuigan): Gentlemen, I might suggest while we are discussing this red document, “Background Papers on Fundamental Rights” that perhaps this should be printed as an appendix to today’s proceedings and it would be available to us in a more permanent form and to everyone else.

Mr. Woolliams: That would be a lot of printing. Surely if we all have a copy we might be able to summarize it. What do you think, Mr. Chairman?

The Joint Chairman (Mr. MacGuigan): Does that pose any problem? Does the amount of printing pose any problems, Mr. Clerk? The Clerk says that it just takes a bit longer for the record. It will not be as much in print as it here appears to be, because it is on separate pages with big thick dividers. I do not think it is that much.

The Joint Chairman (Senator Lamontagne): Our proceedings will probably have a larger distribution than these separate documents. If it were to be printed as part of our proceedings, those coming before us in the future would have that as well.

Mr. Woolliams: I have no objection, Senator.

The Joint Chairman (Mr. MacGuigan): I am sure our proceedings will be a runaway best seller.

Dr. Strayer: I was going to refer, Mr. Chairman, to the document under Tab 10. It is the third document included under Tab 10 and it is headed “Constitutional Conference, Committee of Ministers on Fundamental Rights Meeting No. 2, November 3-4, 1969. Progress Report of the Committee of Ministers on Fundamental Rights to the Constitutional Conference. This report was then submitted to the Conference which met in December 1969. The report first notes that it had a discussion of political rights including:

(a) freedom of conscience and religion;

(b) freedom of expression (including freedom of speech and of the press);

(c) freedom of assembly and association.

It notes that while the members of the Committee felt that these rights should be protected, there is no agreement as to how this could

[Page 22]

best be done but some thought that entrenchment was the best method and others felt that there were other means which could be used, such as protection by statutory form. Some of those who felt that entrenchment was the best method still felt that perhaps there should be some accessible formula found for amending the Constitution before these rights were entrenched.

The report notes that some delegations felt there should be study given to the amending procedure along with other aspects of the constitutional review, that is that work should be proceeding on the amendment procedure at the same time as work was going ahead on matters such as fundamental rights. This viewpoint was merely noted in the report. The Ministers agreed unanimously that there should be certain guarantees for freely held elections at maximum intervals of five years at both the federal and provincial levels. So that was one matter that was agreed upon unanimously.

• 1640

The report also notes that there was some disagreement about legal rights and that the majority of members continue to doubt the advantages of entrenching such legal rights as the right to counsel, right to a fair hearing, right to habeas corpus, which are largely dealt with in Section 2 of the proposed draft Charter I was referring to a few moments ago. These are loosely referred to as legal rights.

As the report says, a majority of members continue to doubt the advantages of entrenching these legal rights. So it was agreed there should be further study given to the alternative means of protecting political rights, the alternative means of protecting legal rights, that further study should be given to possible definitions of the political rights, they being such things as freedom of speech, freedom of press, freedom of conscience and religion, freedom of association and freedom of assembly. It also was felt that the implications of entrenching due process should be given further study. As a result of all this a subcommittee was agreed upon, subsequently has been appointed, and has been giving detailed consideration to these matters.

The Joint Chairman (Senator Lamontagne): A subcommittee of ministers?

Dr. Strayer: No, a subcommittee of officials and advisers. That subcommittee has not reported yet, so its proceedings are not available to us at this time.

Mr. Gibson: Has that subcommittee met yet?

[Page 23]

Dr. Strayer: Yes, it has met and has been carrying on its work in a series of meetings.

The Joint Chairman (Mr. MacGuigan): Perhaps we should begin the general questioning at this point. Mr. McQuaid, would you like to begin today?

Mr. McQuaid: Thank you, Mr. Chairman.

Could the witness tell us whether there has been any degree of unanimity among the provinces of late with respect to these matters you suggest that there is not unanimity on now? Are the provinces any closer together? As I recall it, one province particularly, the Province of British Columbia, objected very strongly to the incorporation of linguistic rights in the Constitution. Has British Columbia changed its thinking on this since the lime it was first announced, or are they still opposed to the incorporation of linguistic rights in the Constitution? I am taking it for granted that I am right when I say British Columbia did oppose this. I think they did, as I recall it.

Dr. Strayer: British Columbia took a public position on this fairly early in the proceedings and was opposed to entrenching linguistic rights in the Constitution. I am not aware that they have changed their position.

Mr. Woolliams: I thought they had reversed themselves.

Dr. Strayer: On linguistic rights?

Mr. Woolliams: Yes. I may be wrong.

Dr. Strayer: This is not to say that they have not been prepared to take certain steps on the legislative and administrative side.

Mr. McQuaid: But they were very adamant as far as the linguistic side of it was concerned and I am just wondering if there is any indication yet that they may have softened a bit, if I may use that term.

Dr. Strayer: They have not said anything further on the subject that I am aware of, so I really cannot judge whether they are more or less adamant.

Mr. McQuaid: Perhaps this may not be a fair question to ask you, Dr. Strayer, but it is a very important point, so far as our Committee is concerned.

It has been suggested that perhaps the proper procedure is really not to entrench fundamental rights in our Constitution. For example, if you do that they say that you are taking away the legislative power and transferring it, for example, to the courts. Would you care to give the Committee your personal

[Page 24]

views on this? Do you think it is a right thing to entrench the fundamental rights in our Constitution? Perhaps you do not care to express an opinion on it.

Dr. Strayer: I do not think I can give my personal views but I can perhaps elaborate on some of the arguments which have been used by the Government of Canada on this subject.

Mr. McQuaid: Yes, I have read those.

The Joint Chairman (Senator Lamontagne): It is a nice try.

Mr. McQuaid: Dr. Strayer, there was just one other thing in connection with the pro- posed amendments that you read there. On page 56 they say that the Charter should recognize and guarantee with respect to English and French languages, and it says at the top of page 56: “The legislatures of New Brunswick, Ontario and Quebec”. Is it not a fact that at least the legislature of one other province, my own province of Prince Edward Island, has passed an Act making both French and English the official languages of at least the legislature?

Mr. Jules Léger (Under Secretary of Stale): I do not think so, Mr. Chairman. It has not come to our notice, and I am sure we would have heard of it.

Mr. McQuaid: That Prince Edward Island has not done this? It is in this report.

The Joint Chairman (Mr. MacGuigan): I believe at least the intention to do so was announced but perhaps the legislation never was passed.

Mr. McQuaid: It says here on page 29:

The use of the English and French languages had been authorized in the Legislative Assemblies of Newfoundland, Prince Edward Island and Nova Scotia.

The Joint Chairman (Mr. MacGuigan): Under what tab is that?

Mr. McQuaid: That is under tab 10.

Dr. Strayer: I think that refers to a resolution of the legislation permitting the use of both languages in the legislature. I understood the question to be whether a statute had been enacted making Prince Edward Island officially bilingual and, as far as we are aware, there has not been such a statute. However, I think there has been a resolution in the legislature with respect to debate in the legislature.

Mr. McQuaid: That is all New Brunswick did, Mr. Strayer—they just passed a resolution.

[Page 25]

The Joint Chairman (Mr. MacGuigan): Mr. Yalden, would you come to the microphone please.

Mr. M. F. Yalden (Assistant Under Secretary of Stale): New Brunswick adopted an Official Languages Act about a year ago, so their position is different from that of Prince Edward Island.

Senator Yuzyk: Is there a similar situation in Manitoba?

Mr. Yalden: I think the answer, sir, is no, there is no Official Languages Act in Manitoba. There is—and I think it is in the book—legislation relative to schooling, the proposed amendment of the Manitoba Schools Act, which would allow more education in the minority language and I believe there has been some action about the use of language in the legislature, but not by way of statute.

The Joint Chairman (Mr. MacGuigan): I will call on Mr. Marceau followed by Mr. Brewin and Senator Grosart.

[Interpretation]

1. Marceau: Mr. Chairman, I have a general comment to make. I think it is unthinkable, that we be given such a document the day before or even the same day the meeting is being held. I do not mean this as a criticism of the joint Chairmen, but I think that if we want the people to feel that we really want to review the Constitution seriously, this document should normally have been given to us before the meeting so that we could have the opportunity to read and study it.

I would like now to question Mr. Léger.

Mr. Léger, do you not agree that, as a matter of principle, the Charter of Human Rights is an extension of several rights and as such, Human Rights should be a provincial jurisdiction? Don’t you think that the entrenchment of the Charter of Human Rights into the Constitution is a sort of erosion of provincial rights; because, even if we would entrench the Human Rights into the Constitution they have to be enforced. It is perhaps the only way the provinces and their in- habitants could be protected.

The main structure on which the charter of Human Rights is based should come directly from the provinces?

• 1650

Mr. Léger: Mr. Chairman, the question was put to me, but I really think it should have been put to Mr. Strayer, because it does not

[Page 26]

affect enough bilingualism for me to answer it. Mr. Strayer may have the answer.

[Text]

Dr. Strayer: Mr. Chairman, this is a difficult question. I think, as I mentioned earlier in my presentation, it is difficult to decide in many cases which jurisdiction is involved in matters of particular human rights. If I might refer just breifly [sic] to the draft charter which is in the document The Constitution and the People of Canada, I would suggest, for example, that in section 1 which deals with what are commonly called the political rights, the freedom of religion, freedom of speech, freedom of the press and that sort of thing, these are matters which by and large have been held to be within federal jurisdiction and the guarantee of each freedom would probably limit Parliament’s power more than it would limit the power of legislatures. The courts consistently when they were confronted with these precedents have held certain provincial laws to be invalid on the basis that these were matters which could be effected by Parliament, but not by the legislatures. So, if we were to guarantee in such a constitutional charter those freedoms, it would interfere more with the power of Parliament than with powers of legislatures, I suggest.

On the other hand, in section 2 we deal with what are commonly called legal rights, matters of procedure before courts and tribunals with the right of arrest, power of arrest and limitations on that power, and the right of the person detained. These are matters which apply equally perhaps to federal law and provincial law because there are many things, of course, done under provincial law which involve the use of the courts and tribunals and which involve the right of arrest or the right of prosecution under provincial laws. So that is the situation where probably provincial jurisdiction and federal jurisdiction are about equally affected.

In section 3 dealing with matters of discrimination, it is probably true that it deals more with matters under provincial law, although not exclusively, because there are situations where Parliament has jurisdiction over employment, property and certain kinds of public accommodation. As far as the use of the English and French language is concerned it is a matter which also cuts across both federal and provincial jurisdiction. I think there has been a certain tendency in the past to assume that provincial jurisdiction over property and civil rights as it is described in the Constitution covers the whole field of human rights and civil rights. Clause 92(13) of the Constitution covers things which are commonly called civil liberties, civil rights,

[Page 27]

human rights, but in fact the way the courts have interpreted the Constitution, one finds these are matters which are effected both by federal and provincial law. So, in entrenching a charter we are dealing with matters that are both provincial and federal, yet the charter, if it is ever agreed upon the Constitutional Conference and the process that is finally used to adopt the Constitution, no doubt would have several effects on the exercise of provincial jurisdiction and it would have considerable effects on the exercise of federal jurisdiction.

However, as far as the enforcement of these rights is concerned, the power would remain where it is now and, therefore, if a province wishes to have laws which prevent discrimination in employment, for example, it could continue to have these laws and could administer them in any way it wanted to. In other words, it would be giving effect as it saw fit in a positive way to the minimum guarantees that are laid down in the charter. It could shape these laws to fit its own particular situation. So, as I understand the effect of the charter it would leave open to each level, each order of government the power to enforce these matters as it saw fit.

[Interpretation]

Mr. Marceau: My next question is of a general nature and I do hope that Mr. Léger will be able to answer this time. Do you not think, Mr. Léger, that any legislation, which has no penalty attached to it, is a useless statute? Experience shows that the statutes that do not involve penalties are not worth much.

Something that happened to me a few days ago might explain what I have in mind. Even though the Charter of human rights stated that the two languages are official and the francophones have the same rights as the anglophones have. This did not prevent me when I came back from Paris, a few days ago, to be told at the customs when I spoke in French: “The language of the country is English”. You can imagine my surprise. I was really baffled. So, I wonder if a Charter of Human Rights that would not involve penalties would not be just a pius enumeration which would not change anything much.

[Text]

The Joint Chairman (Mr. MacGuigan): That is a pretty broad and difficult question, Mr. Marceau, but perhaps either or both of the witnesses would hazard some general comments.

[Interpretation]

Mr. Léger: My comments, Mr. Chairman, are bond to be general as the question is of general nature. This is a problem that comes

[Page 28]

up at every level, even at the international level. The question of penalties is as old as the League of Nations, if you want. The same phenomena was dealt with at the United Nations and again we deal with it here. Pious wishes, as you say, are better than none.

Mr. Marceau: Yes, I agree…

Mr. Léger: That you can’t find someone to speak to you in your own language when you are travelling all over the world is a normal situation. However, when it happens in your own country, it is not a normal situation.

Mr. Marceau: It is not the answer itself, but the comments that come along with it.

Another question, Mr. Chairman, please. Don’t you think that here in Canada we attach too much importance to the enumeration of rights and not enough importance to the enumeration of the obligations of the individuals? Isn’t it high time that the Charter of Human Rights be accompanied by a Charger of obligations? People tend to forget these to think only of their rights. Don’t you think that we should balance the situation by the setting out of the obligations as well as of the rights?

Mr. Léger: This would be the Chart of obligations.

[Text]

The Joint Chairman (Mr. MacGuigan): Do we have any comments?

• 1700

[Interpretation]

The Joint Chairman (Senator Lamontagne): This is really a political question and these gentlemen, our witnesses this afternoon are not here to answer political questions.

Mr. Marceau: It is not that political Mr. Chairman. It is just a matter of finding out if it would not be possible to think of the obligations being the same level as the rights. I do not see anything political, in term of partisan politics. That would be the last thing to do.

The Joint Chairman (Senator Lamontagne): I was just establishing a distinction between

[Page 29]

the role of parliamentarians and the minister’s and that of the officials that are here today. I think that it would amount to expressing a political opinion if they answered yes or no. I am satisfied that it is possible to do so. It might even be desirable but then it would become a political decision.

Mr. Marceau: Yes.

[Text]

The Joint Chairman (Mr. MacGuigan): These are certainly matters, Mr. Marceau, that the Committee will have to weigh in the course of our considerations of these problems. Did you want to make a comment on that Dr. Strayer?

Dr. Strayer: If I might, I will just make one related comment. There has been considerable concern expressed in the Constitutional Conference somewhat along these lines that any Charter of Human Rights which expressed the rights too broadly might have the effect of perhaps diminishing personal responsibilities in situations where it should exist. Some delegates have felt this has been a problem. It has been a problem in some other countries where they have constitutional guarantees. It was suggested that care will have to be taken if we should get to the point of finally drafting the charters not to express the rights in such a way that they could be an invitation to complete licence in some situations, which is, I think, a consideration in the way the Charter is expressed.

Mr. Marceau: Thank you.

The Joint Chairman (Mr. MacGuigan): Mr. Marceau’s initial comments give me an opportunity to direct a special note of thanks from this Committee to Miss Mary Down and the staff of the Constitutional Conference Secretariat who prepred [sic] this document for us. This was a work which we specially requested their assistance on. The material was mostly available to us already, but in a very inconvenient form and they went to considerable labour to prepare this for us. We are very pleased to have it and I think we will have quite a number of opportunities during the course of our year, two years or whatever it may be of deliberations to make full use of it again.

I might also add that I am sure we can even have these same witnesses before us at a later point. It may be, for example, after many other witnesses, both for and against a Charter of Human Rights have appeared before the Committee that we may want to call these witnesses back again or, perhaps, they might even request to be heard again. So, I quite anticipate that we may have government witnesses before us more than once during the course of our inquiry.

[Page 30]

Mr. Marceau: Thank you, Mr. Chairman.

The Joint Chairman (Mr. MacGuigan): Mr. Brewin.

Mr. Brewin: Mr. Chairman, I was trying, as Mr. Strayer was speaking, to write down what I thought he said were the advantages of a Constitutional Charter or Bill of Rights as against a Parliamentary declaration such as we have in the Bill of Rights. I just have three to put to him and I ask him if I have them correct.

I think one point he made was that a Constitutional Bill of Rights would be clearly applicable to the exercise or abuse of powers by legislatures as well as by the Parliament of Canada. Is that correct?

Dr. Strayer: Yes.

Mr. Brewin: Second, because the Constitution is the fundamental law, the basic compact, the recognition and protection of individual rights by a Constitutional Bill of Rights would have an educative effect, shall we say, on legislatures and Parliaments, on courts and on the general public. Is that your view?

Dr. Strayer: That is the point I was trying to make in my rather brief testimony.

Mr. Brewin: The last point you made, as I understood it, is that notwithstanding the Drybones case and other cases, any interference with fundamental rights done in a moment of haste or even hysteria, the court would have the power to intervene more effectively with a Constitutional Bill of Rights than without it.

Dr. Strayer: Yes, in the sense that something done in haste, as you suggest, might involve perhaps a repeal of statutes which had previously protected certain rights and if one had these same rights protected in the Constitution this would not be possible, even if there were an inadvertent inconsistency which Parliament, perhaps, would not have intended, the courts would have an opportunity to define it.

Mr. Brewin: Did the Drybones case apply to provisions in the Indian Act which were enacted before the 1960 Bill of Rights?

Dr. Strayer: Yes, I think that is right.

Mr. Brewin: That is my understanding, but I was not sure about it.

Dr. Strayer: Yes, those provisions have been in the Indian Act for many years.

[Page 31]

Mr. Brewin: But there is no reason at the present time with the Contsitutional [sic] Bill of Rights for Parliament to explicitly pass an act that would be inconsistent with the fundamental rights set out in the Bill of Rights.

Dr. Strayer: No, the 1960 Bill of Rights does itself, of course, require that if Parliament wishes to over-ride provisions in the Bill of Rights it must do so expressly, but it may do that if it wishes.

Mr. Brewin: If you have a constitutional provision it would be limiting it so it could not even do it explicitly.

Dr. Strayer: That is right.

Mr. Brewin: Thank you.

The Joint Chairman (Mr. MacGuigan): Senator Grosart.

Senator Grosart: The Bill of Rights also say, I believe (hat these rights “have existed.” I do not think it uses the word “always” because this might suggest an area of conflict and the application of the Bill of Rights to previous statutes.

Dr. Strayer: That was a possible interpretation which was suggested at various times. I think, again, the Drybones case may have qualified that possibility to some extent because in that case it was recognized in so far as the Indian Act was concerned that in the past it had not assured equal protection of the laws to Indians in these circumstances and, therefore, this was not a right under the Indian Ac which did exist in relation to Indians; that is, they did not have equal protection of the law under that Section and so that was no a right which by law at that time did exist, but it does now because of the decision in the Drybones case.

Senator Grosart: Yes, and existed because of the Bill of Rights.

Dr. Strayer: Yes.

Senator Grosart: Mr. Chairman, if I may, I would like to direct a few general questions to Mr. Strayer. I might say, first of all, that I am not enamoured with this attempt to make a distinction between legal and political rights. I think it is leading to some confusion on the part, particularly, of draftsmen and also on the part of some of those who are reporting from these various committees. So I am not going to attempt to indicate into which categories some suggestions I have might fall.

[Page 32]

For example, I noticed that nowhere in the draft Charter is there any guarantee of the right to representative Parliamentary self- government for all Canadians, in spite of the fact that in the preamble the federal government states as its first objective to establish a federal system of government based on democratic principles. If you read the very eloquent words running through several pages there, you can only conclude that whoever wrote it was not thinking of the Northwest Territories or the Yukon. It so happens the Committee is going there and I am sure this question will be raised. Perhaps this form is the kind of federal Constitution that is projected for the future and the emphasis throughout is on the kind of country we want to live in, to continue a federal system which consists of a central government, 10 provincial governments and 2 colonies.

Can you comment at all as to why there is no reference whatsoever in this Charter to a guarantee of the most basic political right of all, the right to elect your own government?

Dr. Strayer: Senator, I think that is a fair comment. This is not provided for in the Charter. The principle was dealt with in another way in the federal proposals. If you look at the Constitution and the People of Canada on page 72, with reference to provisisions [sic] concerning the House of Commons, the proposition is put forth:

22. The House of Commons should be elected by universal suffrage; it should provide representation on the basis of population except as otherwise provided by the Constitution.

• 1710

On the following page 74, Proposition 30, provision is made that:

The House should be automatically dissolved five years from the date of the return of writs.

There would be a possibility of extension of the life of the House in time of war as there is provided for now in Section 91 of the British North America Act.

Again in relation to provincial constitutions it is proposed on page 80 in the first proposition at the bottom of the page:

1. Each province should have the power to establish and to amend its internal constitution, which must respect the text and the objectives of Canada’s Constitution and the fundamental rights of individuals as defined in the Constitution, and which

[Page 33]

shall include provision for the election by universal suffrage of a legislative chamber every five years and for annual sessions of the chamber.

That would apply, of course, whenever any region achieves provincial status but of course it does not give the situation that you raised in the Territories.

Senator Grosart: It does not apply to all Canadians and in view of the fact again that the emphasis throughout is on the kind of Canada we are going to live in and that all Canadians are going to live in I suggest there should be a provision that all Canadians will have these rights because it seems to me that this is at variance with statements throughout. For example in the Progress Report of the Committee of Ministers on Fundamental Rights, page 2 speaks of guarantess [sic] of freely held elections. It does not say anywhere for some Canadians. The suggestion is for anybody reading it that this means all Canadians. I hope we are not going to get in with these large high sounding phrases where we put our tongue in our cheek and say we do not really mean all Canadians, the same thing that the Declaration of Rights got into when it started by believing that all men are created equal and it took them 100 years to get rid of slavery and they still have not got rid of the problem. If we are going to say these things I suggest they should apply to all Canadians.

It is time for us to get rid of colonialism and surely if we are dealing with a Constitution for the future, a federal Constitution, it is time that we looked at this particular question and this is why I have raised on two occasions, Mr. Chairman, the question of our terms of reference. Again I suggest that it is not quite enough, generous as it is for the Co-Chairmen to say they will interpret our terms of reference liberally, and again I suggest that they assume an obligation to make sure that we have the right to discuss this particularly when we go to the Northwest Territories

The Joint Chairman (Senator Lamontagne): You have exercised that right this afternoon without any objection from our part.

Senator Grosart: I will not comment on the fact of who is the effective Chairman at the moment.

The second point is what seems to me to be another curious omission and that is that except for an oblique reference to exile there are no guarantees of citizenship suggested. There is no definition of citizenship. There is

[Page 34]

nothing to say specifically what is the component of citizenship. What rights do you have because you are a citizen? There is a reference on page 24 of the Canadian Charter, which I will not read in full. The heading is Other legal rights for possible inclusion to guarantee the right of a citizen not to be exiled. Does this make sense? I am not a lawyer, but how can a citizen be exiled? If he is a citizen, where is he going to be exiled to? Surely we are not going to have in this wonderful new Constitution that is what we are going to have, a limited definition of citizenship as between if I may use the term natural citizens and naturalized citizens. Is there a suggestion that we will have a declaration that all citizens will be treated exactly alike in all respects. Has that been suggested?

Dr. Strayer: The question of exile if I might proceed from that particular point does rim into difficult questions of the rights of citizenship. It is conceivable and I think if I am not mistaken there is an example of this in Canada of naturalized citizens having been denied their citizenship and thus made potentially liable to deportation. That could be a situation where you might describe that as the exile of a citizen. It is a two-step procedure in which you take away his citizenship first and then you deport him.

Senator Grosart: There is a legal distinction between exile and deportation, only an alien can be deported. Am I correct in that?

Dr. Strayer: I should think that is normal terminology.

Senator Grosart: I am dealing with a citizen. You are saying that the way we are going to get around this is to deprive him of his citizenship so we can deport him and therefore exile him. Is this the kind of Constitution we want to write?

The Joint Chairman (Mr. MacGuigan): It has been possible, sir, but I think that the purpose of this is to make this impossible.

Dr. Strayer: Yes, but as we explore that problem more fully it appears that this involves a number of very difficult questions of the definition of citizenship and the circumstances under which citizenship might be deprived of a person. I think this is a problem which perhaps goes beyond what can be writ- ten into the Constitution. I think it has been the feeling to date that this involves too many complex questions of the definition of citizenship to be written into the Constitution but at the moment the draft is silent on this point. Perhaps this will require further consideration but I think one cannot look at the ques-

[Page 35]

tion of exile or citizenship without considering all of the complex law which now exists on the subject of how one gets citizenship or how one does not get citizenship.

Senator Grosart: With respect, Mr. Strayer, everything you have said about the definition applies to almost everything in the Constitution. Surely it is not good enough to say because this involves the difficulties of interpretation of the word citizenship therefore we should forget about it in the Constitution. Surely that is not the way we are going to aproach [sic] this. Surely we are going to say because this is a difficult problem that is why we are going to tackle it. Has this approach been considered in your knowledge?

Dr. Strayer: The question of exile and the relationship that has to citizenship certainly has been considered. It is discussed in the first publication and it has not been carried forward into the draft. I think that is about all I can say at this point, Senator Grosart.

Senator Grosart: It uses the phrase the inhumanity of exile. This is the phrase used in the government proposal and yet we seem to be told that we are not going to deal with a clear case of what the government considers to be inhumanity. I am surprised.

You have dealt at some length with the European Convention and I am well aware of why you have placed the emphasis that you have on that, but not as much length on the Universal Declaration of Human Rights which is the Convention to which Canada is a party. Has a study been made of many discrepancies which may exist between existing Canadian law and the broad obligations that Canada assumed under that Declaration?

Dr. Strayer: Not to my knowledge. I am not aware of that although others may be able to comment on that. All I can say is I think it is fairly clear that the proposals in this Charter were felt to be consistent with the Universal Declaration of Human Rights.

Senator Grosart: You think by and large there might not be any discrepancies.

Dr. Strayer: I think not between the draft Charter and the Universal Declaration.

The Joint Chairman (Mr. MacGuigan): Senator, do you have many more questions?

Senator Grosart: I have a final question. You have used the phrase and others have, of

[Page 36]

course, of a department and agency of the federal government. Are you aware of the definition of these terms?

I raise the question because quite recently I saw a statement, I am not sure what its real effect was, that one former agency was not now in future to be considered an agency. I am referring, I think, to Polymer. Have we a definition? When we use this phrase over and over again, it appears an important phrase in respect of constitutional review. Do we know what it means?

• 1720

Dr. Strayer: I assume that the term has a meaning, perhaps different in various contexts and when it is used in various statutes it is usually defined. There is no definition section in this charter and I think it was the assumption that it would have to be interpreted by the courts in the different circumstances and that perhaps the interpretation adopted by the courts in relation to the constitutional guarantees might conceivably differ from the interpretation this court might give to a particular statute using the term agency.

Senator Grosart: I have some doubts about that because there are specific definitions in the Financial Administration Act and actually a listing of the agencies which are to be considered in the various categories. I am aware of that, but I am wondering if in this general use we are going beyond that, because when we say:

The federal government and no department or agency of the federal government shall…

Along the American line of Congress.

… not pass laws.

—it is to me the most effective way of putting teeth into a constitution. I think we should be very clear what we mean. Are we going to let people out from under this? Is it going to be the use of a loose definition to exclude certain emanations of the government from the strictures of the constitution.

Dr. Strayer: Of course one of the problems in putting this kind of guarantee on the constitution is that it has a degree of permanence that statutes do not have and therefore I suppose as in many other of the proposed sections there is an attempt made to express a principle without trying to specify too particularly how it would be applied so that presumably over the years varying interpretations could be given to it in given circum-

[Page 37]

stances, but all with the purpose of implementing the principle that is stated in the charter.

If one were to define at this point in the charter what is an agency it might perhaps become quite irrelevant 10 or 20 years from now.

Senator Grosart: Thank you, Mr. Chairman.

The Joint Chairman (Mr. MacGuigan): Mr. Woolliams.

Mr. Woolliams: I am interested in this subject because I have read considerably in the last few years, in fact, since I have been a Member of Parliament, about amendments to the Constitution. I am interested particularly at the outset of getting the formula set up on how we amend the Constitution. I would like to put this question to you which arose out of Mr. Marceau’s question in which he was dealing with whether you call it as the Senator says, human rights, civil rights or legal rights, I think there is so much overlapping I doubt whether anybody around the table—in our legal history to date, it has not been too bad. We have exceptions and things mentioned here this afternoon, discrimination. I will deal with those in a few moments.

Really what has happened, there were certain rights under the Constitution that were delegated to the provinces and certain rights delegated to the federal government and then an overlapping of those rights. So that when the courts, particularly the Supreme Court of Canada which has the absolute jurisdiction now—it does not go on to the judicial committee of the Privy Council—interprets human rights or civil rights, or human rights in reference to a citizen of Canada, they do it in the light of whether it falls under the provincial jurisdiction, the federal jurisdiction or maybe an overlapping. Has that not really been the story of our legal history to date?

Dr. Strayer: In the field of human rights, if one may call them that for the moment, this has certainly been the case, Mr. Woolliams, whenever the courts have to deal with some apparent threat to human rights. They had to deal with it on the basis of the distribution of powers and if they struck out a statute which appeared to offend against human rights, it was on the basis that this particular legislative body did not have the power to act.

Mr. Woolliams: If another legislative body had had that power, that human right whatever it might be, and I can simplify, it could have been made legal under our Constitution?

[Page 38]

Dr. Strayer: Yes.

Mr. Woolliams: Really, what we have found, and this is what worries me, you do not generalize in a constitution, but you start particularizing, really what happens comparing the constitution? I understand that perfectly well, that a statute, that is what is this weak part of the Bill of Rights itself, is really a Parliamentary statute written into the Constitution, but apart from the Bill of Rights, which we saw in the Drybones case, the limitations in Canada or whether it is at a federal level or a provincial level or the overlapping of the two powers, has come about when some statutes have been passed either by the legislature or the Parliament.

For example, the fact that once an Indian loses his treaty rights under the old Indian Act, I have defended people in that way. They go off the reservation, leave the reservation and when they come back and they have been charged as a trespasser even if they go to see their mother. So that Parliament was usurping human rights and legal rights or civil rights and this is the danger. I put this to you very seriously. This is the point the Senator was bringing out, and Mr. Brewin brought out, I think, that as soon as you start particularizing, drawing up a great colourful document of language and verbiage, then that is when you get into interpretation and limitation.

Where if you generalize—that is why the BNA Act with all its faults has been fairly workable, because the common law has really given us our rights. It has been a crystallization of our customs and our traditions, crystallized into a system of just starting assizes into a system of common law. We have those kind of men on the courts who have that knowledge of human behaviour, of the kind of society you want. They keep bettering conditions so I put this to you seriously.

Would it not be better to have a more general language in any constitution and leave it then to the judiciary, because of our body of common law, to interpret the law in the light of the Constitution? That is why the Drybones case is quoted today. It was the limitation that Parliament put on the Indians, not the common law. If the common law had been allowed to work in this country, the Indians would be allowed to drink on or off the reservation a long time ago.

Dr. Strayer: If I understand the question correctly you are suggesting that if there are to be constitutional guarantees they ought to be in general language and limited. I agree

[Page 39]

there is a great deal to be said for that and to leaving the courts to interpret these provisions in the light of circumstances as they find them and using the conditions and principles which have been handed down as much as possible. There is, of course, another point of view which has been expressed quite often in the debate on this subject and that is that the more scope one leaves to the courts the more they may…

Senator Grosart: The more work there is for lawyers.

Dr. Strayer: More work, yes. They interfere with the legislatures that much more. They may take more unto themselves and take more liberty with the power that is given to them to review statutes and perhaps come up with surprising interpretations. This has been one of the criticisms of some of the decisions of the United States Supreme Court, that working from very simple guarantees they have at times in the view of some people come up with results which go contrary to the expressed wishes of the public, expressed through their legislative bodies.

Mr. Woolliams: In respect to that and with the greatest respect, I think that is where we might have, and I say that it is nice to have, some intellectual confrontation. The American system has not failed in the manner in which you suggest because they generalize; they particularize so much in their Constitution. The fact is that we had a general Constitution and I have yet to hear anyone, no matter how academic they are and what names they have as specialists in constitutional law, ever really come out with some chapter and say, on the powers that are delegated to the provinces and the powers that have been delegated to the federal government and the overlapping, and the interpretation that has taken place, that is really has been working against the welfare of Canada in all its fields.

I think that is where, now think about this, the problem that the United States has had is because they have particularized so much. Somebody said it gives a field day for the lawyers.

The field day for lawyers comes when you get volumes of statutory law on legislation and then you have technical problems. For example, today in the Excise Tax Act, and you can pick out provincial statutes like the liquor act, which reverses the whole system of jurisprudence and puts the onus on the accused to defend himself. It is when Parliament moves in and the legislature moves in and even the body who will draft this constitution starts particularizing that you start

[Page 40]

limiting the individual. Freedom starts to be limited as soon as Parliament starts to put ink on paper.

• 1730

Dr. Strayer: I would not want it to be understood that I was adopting these criticisms of the American system. I think one must also keep in mind some of the very important social developments in the United States that have been the result of decisions by the Supreme Court of the United States enforcing their Bill of Rights. One tends to hear more of the criticisms of the American system than of the benefits which have resulted from having certain constitutional guarantees. If one thinks of the great decisions such as Brown vs. the Board of Education, 1954, with respect to the desegregation of schools or Baker vs. Carr, 1962, in favour of one man, one vote, referring to some sort of fair apportionment of constituencies and state legislatures, I think one can see some fairly convincing evidence that there can be great advantages in having these sorts of principles written into the constitution.

Mr. Woolliams: I am just finished now. That is a matter of argument how you look at it, whether you want a written constitution in all it great details. Any country that has ever adopted that has always limited in my opinion and in my submission the freedom of the individual. He is the one that suffers. The state becomes all-powerful.

The Joint Chairman (Mr. MacGuigan): Did you not, though, Dr. Strayer, in your opening comments contrast the European Convention and the American Bill of Rights on the ground that it was the European Convention which was the detailed one and the American one the broad and general one? Is not the American Bill of Rights one of the most general and least particular that have ever been drafted in the world?

Dr. Strayer: I should think so, yes. Certainly in the modem constitutions, the tendency has been to particuliarize [sic] more in order, I assume, to strike some sort of better balance between freedom for the judiciary to interpret rights very broadly, which has at times happened in the United States, and on the other hand, the protection of other values and other qualifications which have to be taken into account in limiting individual rights occasionally.

Senator Grosart: Mr. Chairman, may I ask a supplementary?

[Page 41]

The Joint Chairman (Mr. MacGuigan): Mr. Woolliams is finished, I think.

Mr. Woolliams: We are back to a second conference here. I had a little consultation with some of my friends.

The Joint Chairman (Senator Lamontagne): May I ask a question to Mr. Woolliams? Do I interpret your views, if extended to their logical conclusions, to be against the Bill of Rights?

Mr. Woolliams: Oh, no, that is the only protection. I did say this, and I always agreed with that. If we could have put the Bill of Rights in the constitution—and Mr. Marceau made that point because he felt that the provinces should have the rights in reference to human rights, but you have to interpret it in the light of my questions.

The only problem—once you have passed all these limiting statutes, then the Bill of Rights came along with its great function and its great message and now it is functioning through the courts. The courts ignored it. It said that wherever a statute was contrary to the terms and conditions of this Bill of Rights, unless that statute particularly sets out that it will govern in spite of the Bill of Rights or supersede the jurisdiction as set out in the Bill of Rights, the Bill of Rights then is used for the interpretation of the statute in the light of the civil rights as set out therein, so I endorse it 100 per cent. I can understand the political nature of your question but I want to put your mind at rest so that you will sleep well tonight, Senator.

The Joint Chairman (Senator Lamontagne): Thank you very much. Senator Grosart.

Senator Grosart: I want to ask Dr. Strayer if it is not a fact that the American constitution is a complete blend of generalization and particularization. In fact, the Bill of Rights, so-called, is actually a series of particular amendments to give teeth to the generalizations in the body of the constitution. Is that a fair description of the American constitution as including the amendments?

Dr. Strayer: I think it goes beyond that, Senator. In fact, the original constitution had very little in the way of reference to human rights. There were certainly some elements of the constitution as originally drafted which one would now regard as being rather contrary to our modem concepts of human rights. However, as you will recall, there was a good deal of debate in the United States at the time of the adoption of the constitution because of the lack of the amendments, because of the lack of any Bill of Rights and,

[Page 42]

in fact, some states did not approve the constitution until they were guaranteed that there would be a Bill of Rights attached to it. I think it does go beyond the principles in the original constitution.

When I said that it was general, I meant that it uses very general terminology. For example, if you take one of the great articles in terms of human rights such as the Fourteenth Amendment in a very few words…

Senator Grosart: At what page?

Dr. Strayer: This is reproduced on page 165 on the document, A Canadian Charter of Human Rights. It is described there as Article XIV although it is really the Fourteenth Amendment.

…nor shall any State deprive any person of life, liberty, or property, with- out due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That in the space of a few words really embraces the concepts that are set out in much more detail in perhaps three of the sections of the draft Canadian charter. It has been given particularity by the courts, in other words. In fact, this article, this amendment remained almost dormant for 70 or 80 years in most respects until the court gave it some life and gave it particularity in particular cases. This, in fact, has been the cause of certain of the criticisms of the courts, that they have applied some of these very simple guarantees in rather surprising ways.

Senator Grosart: It is interesting, if I may say so, that you drew our attention to that article because if I had had time I was going to quote it in my citizenship comment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…

The Joint Chairman (Mr. MacGuigan): Gentlemen, are there any further questions that you would like to direct to Dr. Strayer or Mr. Léger at this time?

Mr. Alexander: Excuse me, Mr. Chairman. I have to leave and I am very sorry that I had to because I found the doctor’s exposé quite interesting.

I suppose firstly I will ask the doctor for his own interpretation of what he would think human rights mean and then, of course, civil rights. I think there is a lot of interplay in these two expressions. I was wondering

[Page 43]

whether the doctor could, in his way, perhaps clear this up for us. This may have been answered. I do not know as I have not been here for a while.

Dr. Strayer: Human rights, sir, and…

Mr. Alexander: And civil rights.

Dr. Strayer: I am afraid that I am not very good on these questions of semantics. I must say that in the proposals that have been set forth there has not been very much attention paid to the problems of terminology. I think the only observation I care to make on that is that in the Canadian context, civil rights has a certain constitutional flavour because of the reference to property and civil rights in Section 92. There has been a tendency here not to describe these things as civil rights in a lot of the literature simply because it confuses with the constitutional provision with respect to provincial jurisdiction over a number of matters, some of which are human rights and many of which are not.

All I can say is that in the preparation of these papers this was not regarded as a matter of great importance because of the great conflict there is in the literature on the subject and it had seemed wrong to be preoccupied with the terminology.

• 1740

The Joint Chairman (Mr. MacGuigan): If I may interject, Mr. Alexander, I happen to have written an article on that four or five years ago.

Mr. Alexander: Is it a good one?

The Joint Chairman (Mr. MacGuigan): I will send you a copy. I will gladly hear judgment on that one after you have read the article.

Mr. Alexander: I was being a little facetious there. Regardless of there being a problem of semantics, I do think that it is important for people to know what we are talking about when we are talking about human rights and civil rights. Sometime I get extremely confused myself.

I know the confrontation that exists as a result of attempting to bring the Charter of  Human Rights within the constitutional structure but it seems to me that the federal government is trying to bring some unanimity in terms of human rights legislation or unanimity by way of constitutional preservation of human rights so that you will have something that goes clean across the country that is equally applicable. Is this the idea?

[Page 44]

Dr. Strayer: This was really one of the stated objectives—to try to find those rights upon which agreement could be reached in the process of constitutional review that could be recognized right across the country.

Mr. Alexander: Right. Then, I would take it that once that comes within the constitution legislation, the constitution would supersede the Ontario human rights, for instance.

Dr. Strayer: That was not the proposed intention, Mr. Chairman. The intention was that the constitutional guarantees would, I suppose, be regarded as a floor or a minimum, but that each jurisdiction should be left to give further effect to human rights so far as they have jurisdiction so to do. It would appear that there would be nothing that I am aware of that would interfere in any way with the Human Rights Act or the Human Rights Commission of Ontario, to take an example.

Mr. Alexander: Right.

Dr. Strayer: Or of the many other statutes in provinces providing other protection for human rights or measures such as the provision of the ombudsman and administrative procedure acts and things like this which might have liberalizing effects and have the effect of better protecting individual rights. These things are still all possible. It is just that if they should be any chance conflict with some of the constitutional principles, they would to that extent be invalid.

Mr. Alexander: Right. I do not have any further questions, Mr. Chairman. Thank you.

The Joint Chairman (Mr. MacGuigan): Well, gentlemen, I think we can release our two witnesses at this time, with considerable thanks to them for their trouble in coming here this afternoon and for their patience in answering all of our questions. The meeting is adjourned.

[Page 45]

APPENDIX “B”

BACKGROUND PAPERS

ON

FUNDAMENTAL RIGHTS

prepared by:

The Secretariat of the Constitutional

Conference

for

The Special Joint Committee of the

Senate and of the House of Commons

on

The Constitution of Canada

June 1970

INTRODUCTION

The material in this booklet was compiled by the Secretariat of the Constitutional Conference to assist the Special Joint Committee on the Constitution of Canada. The material is drawn from the public record of the constitutional review and is related to the specific subjects to which the Parliamentary Committee is directing its attention.

Henry F. Davis,

Secretary of the

Constitutional Conference.

[Page 46]

TABLE OF CONTENTS

1. SOURCE MATERIAL
2. Federal Government
3. Newfoundland
4. Prince Edward Island
5. Nova Scotia
6. New Brunswick
7. Quebec
8. Ontario
9. Manitoba
10. Saskatchewan
11. Alberta
12. British Columbia
13. General Sources
14. RELEVANT EXTRACTS

Section                                                                                                                                    Doc. No.

• Federal Government

—Related Propositions……………………………………………………………………………………………….. 81(2)

• Newfoundland

—Resolution in the legislature of Newfoundland…………………………………………………………… 58

—Related Propositions……………………………………………………………………………………………….. 81(2)

• Nova Scotia

—Statement of Policy on Throne Speech……………………………………………………………………… 42

—Resolution in Nova Scotia legislature……………………………………………………………………….. 58

—Related Propositions……………………………………………………………………………………………….. 81(2)

• New Brunswick

—Continuing Committee of Officials…………………………………………………………………………… 131

—Motion presented to the N.B. legislature…………………………………………………………………… 40

—Bill on Official Languages………………………………………………………………………………………. 121

—Continuing Committee of Officials…………………………………………………………………………… 159

—Related Propositions……………………………………………………………………………………………….. 81(2)

• Quebec

—Brief on the Constitution…………………………………………………………………………………………. 3

—Bill 85 of the Quebec legislature………………………………………………………………………………. 94

—Related Propositions……………………………………………………………………………………………….. 81(2)

• Ontario

—French language schools in Ontario………………………………………………………………………….. 41

—Related Propositions……………………………………………………………………………………………….. 81(2)

• Manitoba

—3rd Constitutional Conference………………………………………………………………………………….. 207

• Saskatchewan

—School Act…………………………………………………………………………………………………………….. 58

—Related Propositions……………………………………………………………………………………………….. 81(2)

• Alberta

—Position Paper prepared for the 3rd Constitutional Conference…………………………………….. 209

—Bill 34: An Act to Amend the School Act……………………………………………………………….. 58

—Related Propositions……………………………………………………………………………………………….. 81(2)

• British Columbia

—Related Propositions……………………………………………………………………………………………….. 81(2)

• General Sources

—Briefing Paper on Discussions of the Continuing Committee of Officials……………………… 75

—Briefing Paper on Discussions of Ministerial Committee on Fundamental Rights…………… 194

—Progress Report of the Ministerial Committee on Fundamental Rights………………………….. 180

—Summary of recommendations of the B & B Commission……………………………………………. 62

—Progress Report of the Ministerial Committee on Official Languages……………………………. 182

[Page 47]

[Page 48]

FEDERAL GOVERNMENT

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) “A Canadian Charter of Human Rights” ……………………………….         Jan.            1                 9-12

(a proposal by the Government of Canada)                                 1968

(b) “Federalism for the Future” …………………………………………………         Feb.            2                 8, 16

(Statement of federal policy)                                                      1968                             34, 36

(c) “The Constitution and the People of Canada” ……………………….          Feb.         112                8, 14

(a federal approach presented to the Constitutional Conference)   1969                             20, 34

—synopsis of the proposed Charter of Human Rights………                                              50-62

(d) Related Propositions…………………………………………………………..                         81(2)             10.5.10

(e) 1st Constitutional Conference………………………………………………          Feb.         53(1)                265-277

—A Constitutional Bill of Rights—Mr. Trudeau                         1968                             323-331

(f) 2nd Constitutional Conference……………………………………………..          Feb.      113(1)                257-259

—fundamental rights—Mr. Turner                                             1969

2. A CONSTITUTIONAL BILL OF RIGHTS

i.e. entrenched

(a) “A Canadian Charter of Human Rights” ……………………………….         Jan.           1                 34-14

(a proposal by the Government of Canada)                                 1968

(b) “Federalism for the Future” …………………………………………………         Feb.            2                 16, 18

(Statement of federal policy)                                                      1968                             20, 22

(c) “The Constitution and the People of Canada” ………………………..         Feb.         112                8, 14

(federal approach presented to the Constitutional Conference)     1969                             16, 18

(d) Related Propositions……………………………………………………………                        81(2)             10.1.5

10.4.9

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian rights

(a) “A Canadian Charter of Human Rights”…………                                 Jan.            1                 16-26

(a proposal by the Government of Canada)                                 1968

(b) “The Constitution and the People of Canada”………..                          Feb.         112                14-20

1969

(c) Related Propositions……………………………………………………………                        81(2)             10.1.5.

10.1.6

10.2.7

1. Linguistic Rights

(a) “A Canadian Charter of Human Rights” ……………………………….         Jan.            1                 26-27

(a proposal by the Government of Canada)                                 1968

(b) “Federalism for the Future” ………………………………………………….        Feb.            2                 6, 10

(statement of federal policy)                                                      1968                             16, 18

22, 24

34, 36

(c) “The Constitution and the People of Canada” …………………………        Feb.         112                18, 20

(a federal approach presented to the Constitutional Conference)   1969                             22

(d) Related Propositions……………………………………………………………..                     81(2)              10.3.8

10.4.8

(e) 1st Constitutional Conference…………………………………………………       Feb.        53(1)              251-257

(Honourable L. B. Pearson)                                                       1968

(recommendations of the B & B Commission)

—5 proposed steps as a guideline……………………………………..                                          257

—revision of the 5 steps…………………………………………………..                                          463-65

—federal-provincial discussion…………………………………………                                          449-515

(f) 2nd Constitutional Conference…………………………………………………      Feb.      113(1)

1969

—Honourable P. E. Trudeau…………………………………………….                                          215-218

—Honourable J. N. Turner—Official Languages Bill………….                                          238

1. Economic Rights

“A Canadian Charter of Human Rights” ……………………………………….      Jan.            1                 27

(a proposal by the Government of Canada)                                             1968

“The Constitution and the People of Canada” ………………………………..      Feb.         112                8

(federal approach presented to the Constitutional Conference)                 1969

1. Form of the Charter

“A Canadian Charter of Human Rights” ……………………………………….      Jan.            1                 29-30

—infringement in times of emergency……………………………….                                          30

—related proposition……………………………………………………….                    81(2)              10.5.11

[Page 49]

[Page 50]

NEWFOUNDLAND

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) Related Propositions …………………………………………………….                        81(2)             0.2.9

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             287-89

(Honourable T. A. Hickman)                                                     1969                             34, 36

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) 1^st Constitutional Conference ……………………………………………….         Feb.        53(1)              455-47

(Honourable T. A. Hickman)                                                     1968

—related proposition

(b) Related Propositions …………………………………………………………..                       81(2)              0.2.9

0.2.10

0.2.7

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              287-89

(Honourable T. A. Hickman)                                                     1969

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) Related Propositions…………………………………………………………….                     81(2)              0.2.9

1. Linguistic Rights

(a) Related Propositions ……………………………………………………………                     81(2)              0.2.9

0.2.10

(b) Resolution in the legislature of Newfoundland ……………………….                          58               0.2.7

(Note from the S.C.C. to the Sub-Committee on Official Languages)

(c) 2^nd Constitutional Conference ………………………………………….        Feb.      113(1)             241-42

(Honourable J. R. Smallwood                                                    1969

—judicial procedure

1. Economic Rights

PRINCE EDWARD ISLAND

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) 1^st Constitutional Conference …………………………………………         Feb.        53(1)              319-23

(Dean M. MacGuigan)

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) 1^st Constitutional Conference ……………………………………………….         Feb.        53(1)              319-23

(Dean M. MacGuigan)

—agree with entrenchment

—each level of government concedes power

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             283-84

(Honourable A. B. Campbell)                                                    1969

0.2.7

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) 1^st Constitutional Conference…………………………………………………        Feb.          53(1)            321

(Dean M. MacGuigan)                                                              1968

—distinction of federal-provincial powers

1. Linguistic Rights
2. Economic Rights

NOVA SCOTIA

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) 1^st Constitutional Conference …………………………………………         Feb.         53(1)             315

(Honourable G. I. Smith)                                                           1968

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             291

(Honourable G. I. Smith)                                                           1969

—basically accepted the Ontario view

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) 1^st Constitutional Conference ……………………………………………….         Feb.        53(1)              315

(Honourable G. I. Smith)                                                           1968

[Page 51]

[Page 52]

Date     Doc. No.           Page

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights
5. Linguistic Rights

(a) Related Propositions ……………………………………………………………                      81(2)              2.4.11

(b) Statement of Policy on Throne Speech …………………………………..        Apr.          42

(reference to French)                                                                 1968

Mr. G. D. Doucet

Minister of Education

(c) Resolution (in N.S. legislature 2 languages) ………………………….         Mar.          58

1968

(d) 2^nd Constitutional Conference……………………………………………….         Feb.      113(1)             250-52

Honourable G. I. Smith …………………………………………………        1969

—cost of programme to be borne federally

1. Economic Rights

NEW BRUNSWICK

1. GENERAL DISCUSSION OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) 1^st Constitutional Conference ………………………………………………          Feb.         81(2)             303-305

(Honourable L. J. Robichaud)                                                    1968

—New Brunswick bill of rights

—ombudsman in New Brunswick

(b) Related Propositions ………………………………………………………….                        81(2)             3.6.18

3.8.20

3.7.18

3.8.18

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             382-83

(Honourable L. J. Robichaud)                                                    1969

(d) Continuing Committee of Officials ………………………………………         May          131              10-12

(Comments on the Judicial Process and National Policy              1969

in a Federal State)

—Dean M. Cohen

—role of the judiciary in a reformed Constitution

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) 1^st Constitutional Conference ……………………………………………….         Feb.        53(1)              303

(Honourable L. J. Robichaud)                                                    1968

(b) Related Propositions …………………………………………………………..                       81(2)              3.6.18

3.8.20

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              282-83

1969

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) Related Propositions…………………………………………………………….                      81(2)              3.6.18

3.7.18

1. Linguistic Rights

(a) 1^st Constitutional Conference ……………………………………………….         Feb.        53(1)              469-75

(Dean M. Cohen) …………………………………………………………         1968

—discusses 5 steps proposed by the federal government

—entrenchment …………………………………………………………..                                             469, 475

(b) Motion presented to the New Brunswick legislature ……………….         Mar.          40

(Premier Robichaud)                                                                 1968

—2 official languages in New Brunswick

(c) Bill on Official Languages …………………………………………………..         Apr.        121

(Note from Secretariat to Sub-Committee on Official Languages 1969

(d) Related Propositions …………………………………………………………..                        81(2)             3.6.18

3.4.15

3.5.16

3.6.16

3.6.17

(e) 2^nd Constitutional Conference ………………………………………………         Feb.        113(1)            282

(Honourable L. J. Robichaud)                                                    1969

—2 official languages in New Brunswick ………………………                                             219-.21

1. Economic Rights

(a) Related Propositions …………………………………………………………..                        81(2)             3.8.19

(b) Continuing Committee of Officials ………………………………………         Sept.          159              3-5

(Working Paper: “Regional Disparities-Alternatives in a             1969

Constitutional Formula”)

[Page 53]

[Page 54]

QUEBEC

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) “Brief on the Constitution:” ………………………………………………..          Feb.            3                 24-31

(Presented by the Quebec Government to the Constitutional        1968

Conference)

—need for provincial consultation ………………………………..                                              29

(b) 1^st Constitutional Conference ………………………………………………         Feb         81(1)             289-301

—synopsis of Quebec’s “Brief on the Constitution”

(Honourable D. Johnson)                                                           1968

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             279-281

(Honourable J. J. Bertrand)                                                        1969

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) “Brief on the Constitution:” ………………………………………………..          Feb.            3                 26, 27

(presented by the Quebec Government to the Constitutional        1968                             28, 29

Conference)

—a constitutional tribunal ……………………………………………                                              27-29

(b) Related Propositions …………………………………………………………..                       81(2)              4.25.46

(c) 1^st Constitutional Conference ………………………………………………          Feb.        53(2)              289-301

(Honourable D. Johnson)                                                           1968

(d) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              279-280

(Honourable J. J. Bertrand)                                                        1969

—the effect on the distribution of powers

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) “Brief on the Constitution:” ………………………………………………..          Feb.            3                 25, 26

(presented by the Quebec Government to the Constitutional        1968                             30

Conference)

1. Linguistic Rights

(a) “Brief on the Constitution:” ………………………………………………..          Feb.            3                 23-24

(presented by the Quebec Government to the Constitutional        1968

Conference)

(b) Related Propositions ………………………………………………………….                        81(2)              4.9.14

(c) 1^st Constitutional Conference ………………………………………………          Feb.        53(1)              451

(Honourable D. Johnson)                                                           1968                             487-91

493-95

—no need for entrenchment of this right

(d) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              221-227

(Honourable J. J. Bertrand)                                                        1969

(e) Bill 85 of the Quebec Legislature …………………………………………         June          95

(Note from S.C.C. to the Sub-Committee on Official Languages) 1969

1. Economic Rights

(a) 1^st Constitutional Conference ………………………………………………          Feb.        53(1)              301

(Honourable D. Johnson)                                                           1968

ONTARIO

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) 1^st Constitutional Conference ………………………………………………          Feb         53(1)             279-287

(Honourable A. A. Wishart)                                                       1968

—discussed the principles inherent in a bill of rights and the

problems of such a bill in the Canadian context

(b) Related Propositions …………………………………………………………..                        81(2)             5.7.15

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             259-269

(Honourable A. A. Wishart)                                                       1969

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) 1^st Constitutional Conference ………………………………………………          Feb         53(1)             281, 285

(Honourable A. A. Wishart)                                                       1968

(b) Related Propositions …………………………………………………………..                        81(2)             5.7.15

5.18.42

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              259-265

(Honourable A. A. Wishart)                                                       1969

—only political rights to be entrenched ………………………….                                             260, 265

268

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) Related Propositions …………………………………………………………..                        81(2)             518.41

5.18.42

(b) 2^nd Constitutional Conference ………………………………………………         Feb.        113(1)

(Honourable A. A. Wishart)                                                       1969

—political rights …………………………………………………………                                              260-262

—egalitarian rights ……………………………………………………..                                              262-264

—legal rights ……………………………………………………………..                                              264-267

[Page 55]

[Page 56]

1. Linguistic Rights

(a) “French language schools in Ontario ……………………………………          1968          41                1-4

(statement by Hon. W. G. Davis Minister of Education)

—secondary school legislation etc. ……………………………….                                              4-20

(b) Bill 140-141 (Ontario Legislature) ………………………………………          1968          58

—amendments

(c) Related Propositions …………………………………………………………..                       81(2)              5.6.12

5.7.13

(d) 1^st Constitutional Conference ………………………………………………         Feb.        53(1)              259

(Honourable J. Robarts)                                                             1968

(e) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              267

(Honourable A. A. Wishart)                                                       1969

—Honourable J. Robarts ………………………………………………                                             229-231

—Honourable W. G. Davis …………………………………………..                                             231-234

1. Economic Rights

MANITOBA

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             279-281

(Honourable S. R. Lyon)                                                           1969

—discusses the use of the common law

—Weir Government

(b) 3^rd Constitutional Conference ………………………………………………         Dec.         207               Ch. 4

(Honourable E. Schreyer)                                                          1969

—statement of new policy

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) Related Propositions (of Weir Government) ………………………….                        81(2)              6.5.13

—oppose entrenchment

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              269-75

(Honourable S. R. Lyon)                                                           1969

—prefer common law and ordinary statute law

—Weir Government

(c) 3^rd Constitutional Conference ………………………………………………         Dec.         207               Ch. 4

(Honourable E. Schreyer)                                                          1969

—statement of new policy

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) 3^rd Constitutional Conference ………………………………………………         Dec.         207               Ch. 4

(Honourable E. Schreyer)                                                          1969

—statement of new policy

—political rights …………………………………………………………                                              1-3

—legal rights ……………………………………………………………..                                              3

—egalitarian rights ……………………………………………………..                                              4

1. Linguistic Rights

(a) 1^st Constitutional Conference ………………………………………………          Feb.        53(1)              453-55

(Honourable S. R. Lyon, A. G. of Manitoba)                               1968

—stressed substance over implementation

(b) Related Propositions (of Weir Government) ………………………….                       81(2)              6.4.11

(c) Bill 59 to amend Public Schools Act ………………………………………..     Apr.           58

(Note from S.C.C. to Sub-Committee on official Languages)       1967

(d) 3^rd Constitutional Conference ………………………………………………         Dec.         207               Ch. 6

(Honourable E. Schreyer)                                                          1969

—statement of new policy

1. Economic Rights

(a) 3^rd Constitutional Conference ………………………………………………         Dec.         207               Ch. 4

(Honourable E. Schreyer)                                                          1969                             p. 4

—statement of new policy

[Page 57]

[Page 58]

SASKATCHEWAN

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)             284-86

(Honourable D. V. Heald)                                                          1969

—Reviews U.S. position

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) Related Propositions ……………………………………………………………                      81(2)              7.2.11

7.2.10

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              284-86

(Honourable D. V. Heald)                                                          1969

—limited entrenchment

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) Related Propositions ……………………………………………………………                      81(2)              7.2.11

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              284-86

(Honourable D. V. Heald)                                                          1969

—entrench political rights

1. Linguistic Rights

(a) Related Propositions ……………………………………………………………                      81(2)              7.2.10

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              242-49

(Honourable D. V. Heald)                                                          1969

(Honourable Mr. Coderre)

—express concern over Official Languages Bill

—issue of jurisdiction

(c) School Act (use of language), s.209-210 ……………………………….                           58

(Note from S.C.C. to Sub-Committee on official Languages)

1. Economic Rights

ALBERTA

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a) 1^st Constitutional Conference ………………………………………………          Feb.        53(1)              305-15

(Honourable E. C. Manning                                                       1968

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) 1^st Constitutional Conference ………………………………………………          Feb.        53(1)              305-15

(Honourable E. C. Manning                                                       1968

—questions entrenchment

—constitutionality of proposed procedure ……………………..                                              461

475-79

485-87

499

(b) Related Propositions ……………………………………………………………                      81(2)              8.3.9

8.1.3

8.1.4

8.3.8

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              292

(Honourable E. H. Gerhart)                                                        1969

(d) Position Paper prepared for the 3^rd Constitutional Conference …         Dec.         209               11-13

(Honourable H. E. Strom)                                                          1969

—judicial vs. legislative review

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) Related Propositions ……………………………………………………………                      81(2)              8.3.9

1. Linguistic Rights

(a) 1^st Constitutional Conference ………………………………………………          Feb.        53(1)              311-15

(Honourable E. C. Manning                                                       1968

—constitutionality of proposed procedure ……………………..                                              461

475-79

485-87

499

(b) Related Propositions ……………………………………………………………                      81(2)              8.3.9

8.1.3

8.1.4

8.2.5

8.2.6

8.2.7

8.3.8

[Page 59]

[Page 60]

(c) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              218-19

(Honourable H. E. Strom)                                                          1969

—opposes Official Languages Bill

(d) Position Paper prepared for the 3^rd Constitutional Conference …         Dec.         209               13-14

(Honourable H. E. Strom)                                                          1969

(e) Bill 34-“An Act to Amend the School Act” …………………………..         Apr.          58

1968

Note from S.C.C. to Sub-Committee on Official Languages)

BRITISH COLUMBIA

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

2. A CONSTITUTIONAL BILL OF RIGHTS

(a) Related Propositions ……………………………………………………………                      81(2)              9.4.8.

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              289-91

(Honourable L. R. Peterson)                                                      1969

—disagrees with full entrenchment

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) Related Propositions ……………………………………………………………                      81(2)              9.4.8

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              291

(Honourable L. R. Peterson)                                                      1969

—limited entrenchment of political rights

1. Linguistic Rights

(a) Related Propositions ……………………………………………………………                      81(2)              9.4.8

9.3.7

(b) 2^nd Constitutional Conference ………………………………………………         Feb.      113(1)              253-54

(Honourable L. R. Peterson)                                                      1969

—issue of compulsion

(c) Use of Language in Courts …………………………………………………..        Apr.           92

1969

—Regina V. Watts 1 D.L.R. 3d 239

—Regina V. Watts 69 D.L.R. 2d 526

(Notes from S.C.C. to Sub-Committee on official Languages)

1. Economic Knights

(a) Related Propositions ……………………………………………………………                      81(2)              9.4.8

GENERAL SOURCES

1. GENERAL DISCUSSIONS OF FUNDAMENTAL RIGHTS

Date     Doc. No.           Page

(a)  Briefing Paper on Discussions of the Continuing Committee of          Feb.           75                9

Officials                                                                                               1969                             36-42

(Table of contents)-Meeting No. 2 ……………………………………                      111

(b) Briefing Paper on Discussions of Ministerial Committee on

Fundamental Rights ………………………………………………………………….        Dec.         194               1

1969

(c) Progress Report of the Ministerial Committee on Fundamental

Rights-Meeting No. 2 ……………………………………………………………….        Nov.         180

1969

(d) Principle Federal and Provincial Statutes on Fundamental Rights        July          154

1969

(e) “Civil Liberties in Canada”-Schmeiser (Oxford University Press,

1964)

(f) “The Canadian Bill of Rights”-Tarnopolsky (Carswell, Co. Ltd.

Toronto, 1966)

(g) “A Democratic Approach to Civil Liberties”-Russell (19

University of Toronto Law Journal, 1969

2. A CONSTITUTIONAL BILL OF RIGHTS

(a)  Briefing Paper on Discussions of the Continuing Committee of          Feb.           75                33-35

Officials                                                                                               1969                             39-41

(Table of contents)-Meeting No. 2 ……………………………………                      111

(b) Briefing Paper on Discussions of Ministerial Committee on

Fundamental Rights ………………………………………………………………….        Dec.         194               2-3

1969

(c)”The Case Against the Canadian Charter of Human Rights”-Smiley

(2 Canadian Journal of Political Science, P 227, 1969)

[Page 61]

[Page 62]

3. CONTENTS OF A CONSTITUTIONAL BILL OF RIGHTS
4. Political, Legal and Egalitarian Rights

(a) Briefing Paper on Discussions of the Continuing Committee of

Officials (Table of contents)-Meeting No. 2 ………………………………..        Feb.           75                37-38

1969         111

(b) Briefing Paper on Discussions of Ministerial Committee on

Fundamental Rights ………………………………………………………………….        Dec.         194               4-6

1969

1. Linguistic Rights

(a) Briefing Paper on Discussions of the C.C.O. (Table of Contents)-

Meeting No. 2 …………………………………………………………………………         Feb.           75                7, 8

1969                             25-33

111                38

(b) Summary of recommendations of the B &B Commission ……….                          62

(c) Progress Report of the Ministerial Committee on Official Languages-

Meeting No. 2 …………………………………………………………………………         Nov.        182

1969

(d) “Language Guarantees and the Power to Amend the Canadian

Constitution”-(12 McGill Law Journal, P 502, 1967)

1. Economic Rights

(a) Briefing Paper on Discussions of the C.C.O. (Table of Contents)-

Meeting No. 2 …………………………………………………………………………         Feb.           75                41

1969

111

———————

[Page 63]

FEDERAL GOVERNMENT—SECTION 1 Extracted From Document 81(2)—Related Propositions

Subject: FUNDAMENTAL RIGHTS

A charter of Fundamental rights should be entrenched in the Constitution and should include the following provisions.

10.1.5 The Charter should recognize and guarantee in Canada the following human rights and fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of speech;

(c) freedom of assembly and association;

(d) freedom of the press;

(e) the right of the individual to life, and the liberty and security of the person, and the right not to be deprived thereof except by due process of law;

(f) the right of the individual to the enjoyment of property, and the right not to be deprived thereof except according to law;

(g) the right of the individual to the equal protection of the law.

The rights and freedoms referred to here are essentially the same as the traditional rights included in Section 1 of the Canadian Bill of Rights. The guarantee of property has been treated somewhat differently, requiring a procedure “according to law” rather than “due process”. This is to indicate that what should be required for the protection of property is procedural fairness, whereas the term “due process” might be capable of a broader meaning which could unduly limit legislative action.

10.1.6 The Charter should also recognize and guarantee in Canada the following rights:

(a) the right of the individual to be secure against unreasonable searches and seizures;

(b) the right of a person who has been arrested or detained,

(i) to be informed promptly of the reason for his arrest or detention,

(ii) to retain and instruct counsel without delay, and

(iii) to the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;

(c) the right of a person not to give evidence before any court, tribunal, commis-

[Page 64]

sion, board or other authority if he is denied counsel, protection against self-crimination, or other constitutional safeguards;

(d) the right of a person to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

1. e) the right of a person charged with an offence to be presumed innocent until proved guilty according to law in a fair hearing by an independent and impartial tribunal, and the right not to be denied reasonable bail without just cause;

(f) the right of a person to the assistance of an interpreter in any proceedings in which he is involved as a party or witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted;

(g) the right of a person not to be held guilty of an offence on account of any act or omission which at the time of its commission or ommission [sic] did not constitute an offence, and the right of a person on being found guilty of an offence not to be subjected to a penalty heavier than the one applicable at the time the offence was committed;

(h) the right of a person not to be subjected to cruel and unusual treatment or punishment.

This section includes most of the traditional “legal” rights protected by the Canadian Bill of Rights. The rights referred to in paragraphs (a) and (g) have been proposed in addition.

10.2.7 The Charter should also provide that every individual in Canada is entitled not to be discriminated against by reason of race, colour, national or ethnic origin, religion, or sex

(a) in employment or in membership in any professional, trade or other occupational association;

(b) in owning, renting, holding or otherwise possessing property;

(c) in obtaining public accommodation, facilities and services.

This section states the rights against discrimination broadly, in effect forbidding both public and private discrimination in such

[Page 65]

matters. Legislation by Parliament and the legislatures would continue to be desirable in order to give full effect to these rights, particularly with respect to discrimination practised by private citizens.

10.3.8 The Charter should also recognize and guarantee with respect to the English and the French language

(a) the right of the individual to the use of either language in the Houses of Parliament of Canada and in the legislatures of all the provinces;

(b) the right of the individual to have access, in both languages, to records, journals, and enactments of

(i) the Parliament of Canada,

(ii) the legislatures of New Brunswick, Ontario and Quebec,

(iii) the legislature of any province in which each language is the mother tongue of at least ten per cent of the population, and

(iv) the legislature of any province where that legislature has declared that English and French are the official languages of the province;

(c) the right of the individual to use either language, without prejudice by reason of the language he employs, when appearing in or giving evidence in, or in any pleading or process in or issuing from

(i) any judicial or quasi-judicial body established by the Constitution or Parliament of Canada,

(ii) the superior courts of New Brunswick, Ontario and Quebec,

(iii) the superior courts of any province in which each language is the mother tongue of at least ten per cent of the population, and

(iv) the superior courts of any province in which the legislature has declared that English and French are the official languages of the province.

The effect of such a guarantee should be that, in the courts referred to, parties, witnesses, and counsel could use either language as they choose. Because it is provided that each person can exercise this right without prejudice to his interests, there would be an implied obligation on the courts in some circumstances to provide translation services to translate his evidence or submission.

Although the Royal Commission on Bilingualism and Biculturalism recommended a full range of court facilities in both languages

[Page 66]

in “bilingual districts”, including lower courts, they are not dealt with here. It appeared preferable to leave this matter for legislative action in each province.

(d) the right of the individual to communicate in either language

(i) with the head office of every department and agency of the Government of Canada,

(ii) with the head office of every department and agency of the governments of New Brunswick, Ontario and Quebec,

(iii) with the head office of every department and agency of the government of any province in which each language is the mother tongue of at least ten per cent of the population,

10.4.8 (iv) with the head office of every department and agency of the government of any province in which the legislature has declared that English and French are the official languages of the province, and

(v) with the principal offices of every department and agency of the Government of Canada, or the principal offices of every department and agency of the government of a province, in any area where a substantial proportion of the population has the language of his choice as its mother tongue.

It will be noted that bilingual districts—where, the Royal Commission recommended, there should be a full range of bilingual facilities—are not referred to as such in this proposition. The general principle of the “substantial proportion” is stated in this paragraph and it is suggested that a constitutional declaration of rights may not be able to go any farther in attempting to provide for the mechanics of applying the basic principle.

The Royal Commission recommended that bilingual services also be provided by local governments in bilingual districts. It appeared preferable to leave this matter for legislative action in each province.

(e) the right of the individual to have English or French as his main language of instruction in publicly supported schools in areas where the language of instruction of his choice is the language of instruction of choice of a sufficient number of persons to justify the provision of the necessary facilities.

[Page 67]

All these suggested guarantees in section 4 follow the general pattern of, and do not derogate from, the language rights recommended by the Royal Commission on Bilingualism and Biculturalism. The Royal Commission dealth [sic] with a broad range of requirements, both constitutional and legislative, and it was not thought feasible to translate all of these into a declaration of individual rights.

10.5.10 It should be provided that nothing in the Charter shall be deemed to conver [sic] any legislative authority on the Parliament of Canada or on the legislature of a province which Parliament or the legislature did not respectively enjoy before the adoption of the Charter.

This section in intended to make clear that no enhancement of the legislative power of either Parliament of the legislatures is to be effected by the adoption of the Charter. No legislative power of enforcement of the guaranteed rights is to be transferred from the legislatures to Parliament or vice versa. (The Charter will, of course, diminish to some extent the legislative powers of both Parliament and the legislatures to the extent that it puts fundamental rights beyond legislative interference.)

With such a provision in the Charter it would also be clear that responsibility for enforcement of the Charter would rest with the governments which now have jurisdiction in these respective fields. The Charter would in some ways be self-executing, in that it would forbid certain forms of governmenal [sic] or private action which would violate it. Where the courts had the opportunity they could apply the sanction of invalidity to statutes, regulations, executive acts, private contracts, etc., which contravened the guaranteed rights. But in other areas—for example, in the prohibition of discrimination in employment or the provision of counsel or interpreters in judicial proceedings—some positive governmental action would be required to make the rights effective. In such cases Parliament or the legislatures would have the power to give effect to these rights, depending on whether the matter involved pertained to federal or provincial areas of jurisdiction.

10.5.11 It should be provided that where Parliament has declared a state of war, invasion or insurrection, real or apprehended, to exist, legislation enacted by Parliament which expressly provides therein that it shall operate notwithstanding this Charter, and any acts authorized by that legislation, shall not be invalid by reason only of conflict with the guarantees of rights and freedoms expressed Charter.

[Page 68]

In every country it has been found necessary to limit certain of the ordinary human rights and freedoms during wars and similar emergencies.

When the Canadian Bill of Rights was passed, the War Measures Act was amended to provide that upon a proclamation of war duly approved by Parliament, nothing done under that Act should be deemed to abridge rights or freedoms in the Canadian Bill of Rights. Section 7 as proposed above would require not only a general declaration of a state of war, but also an express statement by Parliament in its legislation of an intention to abridge rights in the Charter of Human Rights, for any law to have that effect.

NEWFOUNDLAND—SECTION 2

Extracted from Document 58

RESOLUTION

Be it resolved by the House of Assembly in Legislative Session convened, that

(a) the English and French languages shall have full rights of usage in all debates of this House; and

(b) it is desirable to make arrangements for translating into the French language, for the convenient reference of the French speaking people of Canada, statutes of the Province enacted in the future.

Extracted from Document 81(2)—Related Propositions

0.2.7 The Constitution shall recognize the English and French as the founding races of Canada and shall contain the necessary provisions to ensure that citizens of French descent residing in Canada outside Quebec shall enjoy the same rights with respect to the French language and the preservation of their cultural heritage as citizens of English descent enjoy in Quebec with regard to their language and culture.

Subject: Fundamental Rights

0.2.9 The Constitution shall contain a charter of fundamental rights and freedoms embracing, inter alia, political, legal, egalitarian and linguistic rights, freedom of expression, freedom of conscience and worship, freedom of assembly and association, the exercise of individual franchise, the security of the person and the protection of property.

[Page 69]

Subject: Official Languages

0.2.10 The Constitution shall contain provision for the implementation of and shall give effect to the recommendations of the Royal Commission on Bilingualism and Biculturalism relating to the use of the French language throughout Canada.

NOVA SCOTIA—SECTION 3

Document 42

Government of Nova Scotia Policy Statement on Throne Speech Reference to French

April 8, 1968

Gerald J. Doucet

Minister of Education

First I would like to refer you to Section 4 from the Speech from the Throne delivered at the opening of the Second Session of the Forty-ninth General Assembly of the Province of Nova Scotia on Thursday, February 22, 1968, which stated:

4. The Federal-Provincial Conference agreed:

(a) that a Continuing Constitutional Conference be set up composed of the heads of the various governments or their delegates to supervise a continuing constitutional review;

(b) that a Continuing Committee of officials be established to assist the Constitutional Conference;

(c) upon certain terms of reference for the Constitutional Conference including the matter of regional disparity.

You will be asked to consider:

(a) the status of the French language in this House;

(b) facilities for teaching students whose mother tongue is French in areas where the number of French speaking people makes it appropriate to improve such facilities;

(c) improved facilities generally for the teaching of French as a second language.”

I wish to draw your attention especially to paragraph 4 which I have just quoted. The responsibility for the carrying out of the Government’s intention is contained in the last two sub-sections, (b) and (c). These responsibilities are quite properly that of the Department of Education. I would like, therefore, at this time to outline the Government’s policy regarding the teaching of French in the schools of the Province of Nova Scotia.

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The first has to do with providing facilities for teaching students whose mother tongue is French in areas where the number of French-speaking people makes it appropriate to approve such facilities. In regard to this we propose to authorize the school boards who have been given the statutory responsibility for the operation of these schools to decide if all subjects should be and can be taught in the French language. The Federal Government, we are told, will accept financial responsibility for the program. The Department of Education will be ready to advise and assist the municipal boards in the carrying out of their duties as is the policy in regard to other subjects.

The second section has to do with the improved facilities generally for the teaching of French as a second language. Here it is our intention to take the following action:

1. Recruit and train more teachers who can speak French and are taught to use the oral method.
2. Make an effort to refine, improve and further develop our program for teacher training in the regular training institutions and in our Nova Scotia Summer School for teachers.
3. Instruct our French committees to review the methods and procedures now used in the teaching of French in the schools of the Province and then to recommend to the Department ways and means of improving our present program.
4. Continue to provide teachers with financial assistance to prepare themselves to teach French as we have done with other special subjects, and further subsidize training programs in accordance with the amount of financial assistance made available to us by the federal government.
5. Continue to provide instruction in French by television and radio. In addition we propose to experiment with radiovision which we are told is a fairly inexpensive and efficient way to teach languages. The lessons taught by radio will be supplemented by slides and other materials that can be used by the teachers in the classrooms to assist children to learn to speak the French language.

I want it clearly understood that the recommendations I have made to my Government which have been accepted by them came to me as recommendations from my staff and may or may not reflect my personal opinions regarding the matter. I wish to point out that

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I have been very careful to seek out and accept the best professional advice available before I made any recommendation to the Government.

Perhaps you will understand what I mean when I say that I would feel more comfortable in announcing the policy of the Government regarding the teaching of French in the schools of the Province of Nova Scotia if my name was Ferguson or Nicolson rather than Doucet.

I have carried out my responsibilities as Minister based on the best professional information available to me.

Extracted from Document 58

RESOLUTION

Resolved that henceforth every Member of this House may, as a matter of right, address the House in either of the two official languages of Canada, being the two languages referred to in Section 133 of the British North America Act, 1867.

Moved March 18th, 1968

Passed March 18th, 1968

Extracted from Document 81(2)

—Related Propositions

SUBJECT: FUNDAMENTAL RIGHTS

2.4.11 Each province should provide educational opportunities for its English or French minority groups insofar as those educational opportunities are desired by the minority groups and the minority groups are concentrated in areas that can be reasonably served provided that the primary goal should be to achieve a reasonable degree of bilingualism in Canada.

NEW BRUNSWICK—SECTION 4

Extracted from Document 131

Comments on the Judicial Process and National Policy in a Federal State (Dean M. Cohen), (pp. 9-12.)

1. Some questions and possible guidelines for the role of the Judicial Process in a changing Canadian constitutional structure and system

A number of interesting questions now arise from the present constitutional review and program of reform and their effect on the position of the Canadian Courts in the future. These questions may be put as follows:

1. Will the role of the final court of appeal in constitutional matters in Canada be enlarged by the proposed constitutional changes in governmental powers and structures; in now attempting to define the classical principles of government, e.g. responsible

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government; in possibly having a Bill of Rights in the Constitution, or in possibly entrenching language rights in such a Bill, or outside of it?

2. Will the Courts have a new function to perform dealing with problems of inter-governmental cooperation—province to province and federal-provincial—in the event that such cooperation or consultation is given institutional and “mandatory” definitions in the Constitutions?
3. Will the changing character of the Bench, the Bar and the Law Schools influence the methods of analysis to be employed by Courts in constitutional matters and what feedback will such changed methods have on the policy role of Courts and on the making of public policy in general?
4. Are there advantages or disadvantages to be considered in choosing constitutional mechanisms that increase or otherwise vary the role of the Courts as we have known that role heretofore, in Canada, in constitutional matters?

Re. 1: Will there be an enlarged role for judicial action in a reformed Canadian Constitution?

Despite the quite severely self-limiting and strict interpretation traditions, generally, of the Canadian Courts (and of the Judicial Committee) in constitutional matters (except for Rand, J., Duff, C.J., and one or two others) it seems improbable that whatever may be the form of the final court of appeal in constitutional matters, its role is likely to be enlarged by several of the proposals for constitutional change now being considered by all governments. Altogether apart from changing allocations of power that possibly may result from some new statement of distribution between the federal and provincial legislatures, (if any), some of the proposals clearly will require judicial attention in areas now exclusively determined by the “customs and conventions” of the Constitution. If, for example, there is a definition of the nature and operation of responsible government; the status and power of the Governor General; the legal position of political parties (as some have suggested) such constitutional language, however skilfully drafted, will in the early years of the new provisions clearly be an invitation to frequent judicial review and interpretation. However, even if these new principles were to be well fitted within the existing traditions of Canadian constitutional interpretation, the insertion of a Bill of

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Rights manifestly will require a degree of judicial participation in both the negative and positive aspects of policy making that may far exceed what is presently the customary Canadian pattern. The draft federal Charter of Human Rights, for example, cannot be imagined as having anything but the most comprehensive impact on litigation, on new standards by which to judge legislative, executive and administrative behaviour, as well as on new principles and procedures to command the legislative and executive branches of the Government to take action or to interrupt such action in areas of important social policy, in the name of the higher ‘norms’ of the Charter or Bill of Rights itself. The possible scope for such directives by the Court can be envisaged by considering the scope of the directives given by the Supreme Court of the United States in the School desegregation and reapportionment cases. To a very large extent, the areas and dimension of such judicial participation will depend upon the initiatives of the Bar, and of governments, in demanding the attention of the Courts to these new provisions and the response of the Bench in moving within a quite unaccustomed field of action, at least in this first period.

Similarly, if Language Rights are to be found in such a Charter or Bill of Rights, or if they are entrenched outside of such a Charter but in the Constitution elsewhere, then interesting questions will arise as to how far new authority will have been given to the Courts to measure standards of federal and provincial legislative and administrative action in accordance with the litigated demands for such rights, brought to the attention of the Courts by various levels of government or by private actions. In any event all these possibilities envisage a much more dynamic use of litigation to both stimulate policy and its judicial interpretation and application and envisage perhaps, even more, an increasing confidence in the judicial process to perform such functions in the name of adjudication, functions which heretofore had a high degree of autonomy in the administrative or legislative branches of the government

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with policy generally reserved to government itself, to initiate and administer.

Yet the moment it is admitted that greater precision is desired in any statement of so- called “rights”, through a Charter or otherwise, it must at the same time be admitted that Courts are going to be required to determine their meaning and application. Whether there are social gains or losses here in terms of new protections on the one hand, or the disutility of too broadly shared power on the other, remains to be seen. But a new level of duties will clearly be assigned to the courts, and particularly the final court of appeal in constitutional matters, and correspondingly some new sense of self-limiting caution will now equally be necessary in the operations of the legislative and executive processes.

Document 40

MOTION

For Thursday, March 28, 1968

I give Notice of Motion that on Thursday next, I shall Move, Seconded by the Honourable L. C. DesBrisay:

WHEREAS in Canada and in New Brunswick there are two principal languages, English and French, and

WHEREAS Canadians are dedicated to the principle that all citizens should feel at home in every part of Canada, and

WHEREAS this principle requires of Canadians a new policy of linguistic equality that will give fuller expression to the values of both English and French linguistic traditions, thus strengthening the unity of Canada, and

WHEREAS the national and provincial governments are united in support of this policy, as evidenced by the ‘consensus on language rights’ achieved at the February, 1968 Federal-Provincial Conference, and

WHEREAS the long association of English-speaking and French-speaking citizens in this Province affords New Brunswick a unique opportunity to serve the cause of national unity,

THEREFORE, BE IT RESOLVED THAT THIS ASSEMBLY:—

1. declares the principle that the English and French languages are the official languages of New Brunswick;

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2. re-affirms that the English and French languages have full rights of usage in all the proceedings of this Assembly;
3. agrees that the Government take steps with appropriate speed to provide for the printing in both English and French of all the records and proceedings of this Assembly, and of the provincial statutes and other public documents;
4. agrees that the Government introduce with appropriate speed such legislation as may be required to establish in New Brunswick the language regime appropriate to an officially bilingual Province, and in particular to introduce such measures in relation to Education, the public service, and the judicial system; and
5. recommends that the Government cooperate and consult with other provincial governments and with the Government of Canada to coordinate linguistic programs.

Document 121

Constitutional Conference

Sub-Committee on Official Languages

Note from Secretariat

Attached is the Bill on Official Languages of the Legislative Assembly of the Province of New Brunswick which may be of special interest to the members of the Sub-Committee.

2nd Session, 46th Legislature,

New Brunswick,

18 Elizabeth II, 1969

73

BILL

AN ACT

RESPECTING THE

OFFICIAL LANGUAGES

OF NEW BRUNSWICK

HON. LOUIS J. ROBICHAUD,

P.C., Q.C.

BILL

AN ACT

RESPECTING THE

OFFICIAL LANGUAGES

OF NEW BRUNSWICK

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1. This Act may be cited as the Official Languages of New Brunswick Act.
2. In this Act,

• “court” includes judicial, quasi-judicial and administrative tribunals; and

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• “official languages” means those languages so established under section 3.

3. Subject to this Act, the English and French languages

• are the official languages of New Brunswick for all purposes to which the authority of the Legislature of New Brunswick extends; and
• possess and enjoy equality of status and equal rights and privileges as to their use for such purposes.

4. The official languages may be used in any proceeding of the Legislative Assembly or committee thereof.
5. Records and reports of any proceeding of the Legislative Assembly or committee there- of are to be printed in the official languages.
6. (1) Bills introduced into the Legislative Assembly are to be printed in the official languages.

(2) Motions or other documents introduced into the Legislative Assembly or committee thereof may be printed in either or both official languages.

7. The next and succeeding revisions of the Statutes of New Brunswick are to be printed in the official languages.
8. (1) Subject to subsection (2), statutes passed subsequent to the proclamation of this section are to be printed in the official languages.

(2) Subsection (1) does not apply where the statute is an amendment to a statute printed in only one of the official languages.

9. Subject to section 16, notices, documents, instruments or writings required under this or any Act to be published by the Province, any agency thereof or any Crown corporation are to be printed in the official languages.
10. Subject to section 16, copies of Official and other notices, advertisements and documents appearing in The Royal Gazette are to be printed in the official languages.
11. Subject to section 16, where requested to do so by any person, every public officer or employee of the Province, any agency thereof or any Crown corporation shall provide or make provision for such person

• to obtain the available services for which such public officer or employee is responsible; and

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• to communicate regarding those services;

in either official language requested.

12. The council of any municipality may declare by resolution that either or both official language may be used with regard to any matter or in any proceeding of such council.
13. In any public, trade or technical school,

• where the mother tongue of the pupils is English, the chief language of instruction is to be English and the second language is to be French;
• where the mother tongue of the pupils is French, the chief language of instruction is to be French and the second language is to be English;
• subject to clause (d), where the mother tongue of the pupils is in some cases English and in some cases French, classes are to be so arranged that the chief language of instruction is the mother tongue of each group with the other official language the second language for those groups; and
• where the Minister of Education decides that it is not feasible by reason of numbers to abide by the terms of clause (c), he may make alternative arrangements to carry out the spirit of this Act.

14. (1) Subject to section 16, in any proceeding before a court, any person appearing or giving evidence may be heard in the official language of his choice and such choice is not to place that person at any disadvantage.

(2) Subject to subsection (1), where

• requested by any party, and
• the court agrees that the proceedings can effectively be thus conducted;

the court may order that the proceedings be conducted totally or partially in one of the official languages.

15. In construing any of the instruments, bills, statutes, writings, records, reports, motions, notices, advertisements, documents or other writings mentioned in this Act, both versions in the official languages are equally authentic.
16. Where

• warranted by reason of numbers of persons involved;
• the spirit of this Act so requires; or

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• it is deemed necessary to so provide for the orderly implementation of this Act;

the Lieutenant-Governor in Council may make regulations determining the application of sections 9, 10 and 11 and subsection (1) of section 14.

17. This Act or any section thereof comes into force on a day to be fixed by proclamation.

Extracted from Document 159

Regional Disparities Alternatives in a Constitutional Formula—(pp. 3-5).

In the opinion of the Government of New Brunswick there is every reason to expect in any future constitutional revision a recognition of the disparities question through some formal statement in the Constitution. But there are a variety of approaches, several of which may have quite different juridical, administrative and political consequences. These approaches may be summarized as follows:

1. A broad statement in the Preamble of some future Canadian Constitution, or amendments, setting out the elimination and/or reduction of regional disparities as a prime goal of Canadian society.
2. In addition to such a statement in the Preamble, specific “powers” could be vested in the Federal Government to take all the necessary spending steps to reduce or eliminate such disparities.
3. This positive constitutional statement giving the Federal Government “power” to reduce or eliminate disparities could be reinforced by adding the “obligation” to do so; not merely a power with its consequent discretion to do or not to do.
4. If at some stage a Canadian Bill of Rights were to include social and economic rights, such a provision or provisions would create a standard amounting to a legal obligation toward the id viulthawtlobhsqguasqv [sic] rights, such a provision or provisions would create a standard amounting to a legal obligation toward the individual that would have as its broader consequences reducing inequalities and providing social and economic opportunities for those protected by the objectives of such a constitutional requirement—the indi-

[Page 79]

rect result of which would be group benefits in less developed regions or areas.

5. The use of a formula to determine both equalization concepts and regional disparity obligations written into the Constitution, thus spelling out the obligation whether that obligation is in the form of a general statement as in (3) above or whether it is in the form of economic and social rights as in (4) above.

Of all of these approaches the simplest undoubtedly is the use of the Preamble to state a general national policy and goal while the most complex is the attempt to write a “fixed formula”, as an “obligation”, into the Constitution itself.

The Government of New Brunswick does not believe that a fixed formula is either desirable or possible in view of the fluid nature of the problems posed by the ongoing attempt to develop a society with a minimum of disparity between regions. The early obsolescence of the Confederation financial settlements demonstrate how difficult or impossible any realistic approaches to formula-making would be.

Similarly the Government of New Bruns- wick does not believe that public opinion in Canada is prepared to entrench general principles of economic and social rights in some future Charter now being considered—although there is no reason why this approach should not be among those examined in a serious study of this question.

The Government of New Brunswick, however, is of the opinion that the statement of national policy or broad goals aimed at the reduction of regional disparities should at least be in a Preamble, but this may not be enough. It would therefore prefer to see in addition to the Preamble, a firm statement of “powers” vested in the Federal level of government to eliminate or reduce such regional disparities and to maintain systems aimed at equalization of services. Such a power could be set out in the section or sections of the Constitution providing for expressed powers.

A very difficult question is whether these powers should be made a specific “obligation” of the Federal Government. A supplementary

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question of almost equal difficulty, is whether by actually defining the power to promote equalization of services and to deal with regional disparities, there is implied a restriction on the spending power because a part of it is now being defined; whereas until such a definition takes place the spending power, certainly for unconditional grants, remains unfettered. To add a definition in this area may seem to strengthen the position of regions receiving federal assistance by giving the Federal Government the specific power to assist, as part of the national goals set out in the Preamble, but in fact it may be defining the spending power in such a way as indirectly to open the debate as to whether other forms of spending power would also have to be spelled out in such a revision.

Extracted from Document 81(2)

—Related propositions

Subject: Official Languages and Confederation

3.4.15 The English and French languages are the official languages of Canada. This principle shall be converted, as speedily as possible, into constitutional rights and administrative operations, federally and provincially.

COMMENT:

1. This proposition represents a basic objective for all Canadians and all governments. It is recognized that there may be different degrees of coverage (see the next Proposition in this Section), and different time scales of implementation as between the Federal Government on the one side, and among the several Provinces on the other.
2. A valuable approach may be one that seeks the earliest constitutional entrenchment, as New Brunswick is prepared to do. But with or without entrenchment, the Constitutional Conference of February 1968 made it clear that there is a “national commitment” which has now altered the face, the image and the function of Canadian society and government. However, the various levels of government may differ in their methods and time-schedules in the process of implementation.

3.5.16 English-speaking and french-speaking Canadians shall have the constitutionally-entrenched right to be educated in, or to have relations with legislatures, governments, and

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courts in one, or both, of the Official Languages wherever they may live in Canada and wherever the structure and distribution of population requires and makes practical such rights.

COMMENT:

1. Some important questions remain to be fully explored—either bi-laterally between the Federal and Provincial Governments concerned, or by the Committee of Officials (its Official Languages Sub-Committee) and the Constitutional Conference itself. These questions include the complementary interactions between federal and provincial legislation in the development and administration of the two-language policy (important examples vis-à-vis New Brunswick—federal action required to make New Brunswick official language policy operative in the courts in the light of a recent Appeal Court decision in New Brunswick; ensuring co-ordination of federal and provincial programs).
2. An important issue is the sharing of costs, particularly the heavy “start-up” costs to be borne, for example, by New Brunswick as the Province with much the largest French-English proportions in Canada, and therefore facing possibly the highest relative costs far total bi-lingualization.
3. A further issue concerns methods of utilizing federally-directed national communications media in support of the two-languages policy, and relating such media also to Provincial needs and efforts (e.g. Provinces such as Ontario, Quebec and New Brunswick with a special task in this regard).
4. Some lessons may be learned too, as to how to avoid possible difficulties by observing bilingualism or multi-lingualism in advanced countries such as Belgium or Switzerland and here the studies of the Royal Commission on B & B should prove helpful. Equally, care will have to be taken in any proposed amending processes to make certain that they do not alter adversely some present program or practices amounting to “rights” under the denominational rights provisions of the British North America Act if these are now to be converted into language rights programs. There are certain interpretations to Section 93 of the BNA Act which suggest that thought will have to be given to the conversion of denomination school rights into language rights without diminishing the present language autonomy and programs developed under the denominational rights system. Similarly, a careful study of the effective experience with Section 133 of the BNA Act may uncover Federal problems which are not

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yet fully understood if a much wider system of language rights was to be applied to the federal system as well as to the re-inforcement [sic] for example of English-language rights, not only in the Courts of the Province of Quebec but in all public documents. New Brunswick has much to learn from the long leadership of Quebec in bilingualised systems of rights through the particular application to Quebec of the existing provisions of the BNA Act.

3.6.16 5. The language of the Proposition is drafted in realistic, practical terms deliberately so as to avoid “grand pronouncements” or “in principle” statements in this field of constitutional provision that fail of actual implementation. It is important to tie the discussion of this principle to the specifics of programs, administrative provisions, educational arrangements and programs, etc.

3.6.17 The English and French languages shall have equality for all federal parliamentary and administrative purposes both within Canada and abroad, subject only to the considerations of necessity and convenience in the effective management of individual government operations.

COMMENT:

1. There is also the very special case of the Ottawa area where the five governments concerned—Federal, Quebec, Ontario, Ottawa and Hull—will be moving toward some new concepts of bi-lingualisation to express in the most practical and symbolic forms the changing social face of Canada through the demonstration of its successful alteration in the capital area itself.
2. Bilingualisation anywhere does not mean uni-lingualism with reluctant concessions. While mother tongues may predominate they will no longer exclude, but this must work both ways. There must be opportunities to acquire in both schools and the public service a working knowledge of both languages wherever this, is desired, side by side with the existence of schools essentially giving instruction in a single mother tongue and preserving the integrity of that mother culture accordingly.

SUBJECT: A CHARTER (OR BILL) OF FUNDAMENTAL RIGHTS AND CONFEDERATION

3.6.18 A Charter of fundamental rights and freedoms should be entrenched in the Constitution. Such rights and freedoms should embrace the classical civil and political liber- ties we have known, to which should be added refinements including language rights (unless otherwise dealt with); procedural safeguards against abuses of the trial or

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administrative process; possible limitations on the legislative powers of both parliament and the provincial legislatures; a general ‘due process’ clause with both procedural and substantive implications for the operations of both the legislative and administrative processes: and such other statements of rights and freedoms that reflect the modern concern for “the individualisation of justice”, in the face of ever growing state power.

3.7.18 COMMENT:

1. Everyone is familiar with the continuing debate over the limited success of the 1961 Canadian Bill of Rights as a Statute of the Parliament of Canada. The general reluctance of the Courts to use the Bill has been explained both because of its particular terminology on the one hand and its limited statutory form and authority on the other. Nevertheless, it marked a significant beginning—along with the Saskatchewan Bill of Rights, and together with the various provincial statutes dealing with non-discrimination in employment and accommodation—toward a statement of broad “rights” policy but amounting to a great deal less than a modern comprehensive Constitutional Charter. The recently completed Quebec Statement of Rights not yet enacted but which will be introduced in the revised Quebec Civil Code is also an important step toward meeting the developing public demand for and its familiarity with Charters or Bills of Rights.
2. There are some major difficulties that have to do with the scope of such a char.er and the role of parallel provincial charters. As to the first, the White Paper produced by the Government of Canada for the February Conference and entitled “A Canadian Charter of Human Rights” sets out very well indeed the main topics that might be included in any such federally proposed bill and these are very similar to the proposition set out above. The White Paper is very conservative on the role of economic and social rights and properly so. (See next proposition in this section). Indeed it includes the non-discrimination question under other headings and this identifies the special issues raised by economic and social rights per se, such as the right to employment, social security, to an education, etc.
3. The other issue of technical and policy significance is the effect of such a Bill of Rights on any theory of legislative supremacy which has dominated constitutional thought and practice in the Anglo-Commonwealth system even where written constitutions have been involved, e.g. Canada and Australia. To some extent, however, the introduction to a “due process clause” will merely extend the

[Page 84]

already significant limits on parliamentary supremacy that exist in the decisions of the Courts concerning Parliament and the Legislatures in applying the BNA Act as it now stands. Nevertheless, such an extension, if it includes the power of the Courts to invalidate legislation for general policy reasons, for its violation of some “due process’ standard affecting person of property and not merely for reasons of the procedures laid down in the statutes, will in fact change the nature of our parliamentary system. For to that extent the Courts will now have the last word on the validity of legislation independently of the question of division of powers.

3.8.18 and based instead upon broad concepts of policy as the Courts evolve new limits beyond which the theory of supremacy may not go. Judging by United States’ experience, and the wide range applications of the due process clauses of the 14^th and 15^th amendments of the U.S. Constitution, there may be many benefits but also serious risks. There was a time indeed when from the 1880’s to about 1935 when the U.S. Supreme Court employed the 14th Amendment as a means of striking down progressive state legislation on the grounds that it amounted to a taking of property without due process of law. It is unlikely that this particular U.S. experience at the height of 19th Century “laissez-faire” ideas would find any similar application to a future Canadian constitutional system.

SUBJECT: A CHARTER (OR BILL) OF FUNDAMENTAL RIGHTS AND CONFEDERATION

3.8.19 In a Charter of Fundamental Rights, economic and social rights may be alluded to in the most general terms and should include statements with respect to non-discrimination in the matter of social claims and benefits (employment, housing, etc.).

COMMENT:

1. Beyond such limited rights and general allusions, care must be taken not to attempt to entrench social, economic and welfare policies and objectives such as full employment, social security, minimum wages, hospitalization, etc. in constitutional terms. The consequences could be to provide a new theory of state duties enforceable upon Parliament of Legislatures through the application of orders by the Courts on such issues.

3.8.20 The entrenchment of a Charter or Bill of Rights in the constitution shall not preclude the entrenchment of complementary or parallel bills of rights in the constitutions of the provinces.

[Page 85]

COMMENT:

1. It will be for the Courts to resolve any conflict between Federal and Provincial Charters or Bills, and their standards, and to determine theories of supremacy, if any.

QUEBEC—SECTION 5

EXTRACTED FROM DOCUMENT 3—BRIEF ON THE CONSTITUTION—(pp. 22-31)

(2) Official languages

The Royal Commission on Bilingualism and Biculturalism has just given us the General Introduction to its final Report, as well as its Book I on the official languages. Nine Books still to come will deal with labour; education; the federal capital; Parliament, the Cabinet and the Supreme Court; voluntary associations; other ethnic groups; arts and letters; the mass media; and the general conclusions. Any attempt to pass judgment on the Com- mission’s work at this stage would therefore be premature.

In our opinion, it is significant that Book I on the official languages is only the first of several volumes. For one could be lead to believe that the problem of cultural duality—better still, cultural equality—is simply a matter of official languages, when in fact it is a much more complex question. By insisting in its General Introduction that the problem of biculturalism is primarily that of the intrinsic vitality of each culture considered separately, the Commission did Canada a great service.

Our reaction is naturally one of gratification at finding Québec so frequently held up as an example. The Commission conducted a thorough investigation into the official status afforded the English language in Québec and we feel we can take justifiable pride in the fact that it found no grounds for criticism in that regard. As a result, most of its recommendations do not apply to Québec since they are based on current practice in our province. This is why we have deemed it appropriate to abstain from elaborate comments on this subject.

The only recommendations which have any real implications for our government are those pertaining to the federal capital, the establishment of bilingual districts, the adoption of an Official Languages Act and the appointment of a Québec Commissioner of Official Languages. We would like to make it clear that we agree generally with the facts established by the Commission and with the spirit of its recommendations. We do have

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certain reservations concerning the proposal to appoint Commissioners of Official Languages; in our view, it would be preferable to create a Permanent Federal-provincial Commission on Language Rights as we suggested in Toronto. Nor do we think it desirable for the federal government to take direct or indirect action in provincial fields of jurisdiction even if it were to induce the provinces in applying the recommendations of the Commission.

It is possible, even probable, that the Commission recommendation on bilingual districts could do much to solve the official-language problem in other provinces. We are not convinced however that it fits the situation in Québec. In fact, we believe that our present linguistic policy is far more generous than that which would result from widespread establishment of such districts. The system which has grown up in Québec with each successive generation is a combination of many elements based on customs and experience; it would not necessarily be improved by creation of bilingual districts. We sincerely believe that, over the years, we have really applied within our sphere the Commission’s recommendations before they were formulated.

Some of our citizens have even protested against the place occupied by the English language in Québec. Let us state for the record that we shall not correct the awkward aspects of this situation—if one considers the appreciable advantages enjoyed by our English speaking minority be depriving the latter of any fundamental rights. As a matter of fact, we are fully prepared to guarantee by new constitutional provisions—in a form yet to be determined … the rights of the English language in Québec.

In this same spirit, it is only fitting that the rights of French in Québec be not only guaranteed but also expanded beyond the bare terms of a juridical document, in order to correspond to our demographic situation. In other words, even though English and French have and will continue to have official status, it is only natural for the Quebec Government to show special concern for the French language and do everything possible to stimulate its vitality and encourage its use in all spheres. If all citizens in other provinces are required to have sufficient command of English as the language of the majority, it would seem fair that the same apply to Quebecers as regards French. Since both are universal lan-

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guages, we do not believe it would be an injustice—on the contrary—if we were to make it easier for our English-speaking residents to study and use French.

Obviously, all the Commission’s recommendations will have to be subjected to continuing and painstaking study. Meanwhile, we wish to assure all provinces planning to implement them and requiring Québec’s cooperation in doing so that we shall do our utmost to help them in this task. We shall moreover be happy to participate actively in the works of the commission of this conference which, as we will recommend later, may be set up to deal with this question.

(3) Human rights

The Government of Québec is conscious of the fact that, among achievements of the United Na ions in the last twenty years, the Universal Declaration of Human Rights and the two covenants on human rights rank very high on the Organization’s list of outstanding contributions to international progress.

It is significant that, in terms of human rights, no distinction can be made between developed and underdeveloped countries. In this respect, all governments are more or less breaking new ground every day.

In Québec, legislation on freedom of religion was enacted over a hundred years ago. Our public school system acknowledges the rights of parents to have their children educated in either of Canada’s two official languages and in accordance with their religious beliefs. Our Civil Code has long maintained a tradition for protecting the individual’s rights. This tradition was built on the principles of civil liability and action for damages; it is even realized today that the Civil Code may have been underestimated as an extensive and efficient means of protection. Not long ago, the Legislature has dealt with specific problems raised by distinctions on the basis of race or other factors. Two major pieces of legislation were adopted forbidding hotels, restaurants and employers to discriminate against anyone because of race, religion or ethnic origin.

More recently, our Commission for Revision of the Civil Code drafted an amendment con-

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cerning civil rights, worded as a declaration of the individual’s civil rights, and intended as a preliminary chapter to our revised Civil Code. Moreover, our government intends to submit this draft declaration to the Legislaure [sic] before going on with the over-all revision of the Code.

The points on which, in the past, Québec and the rest of Canada seem to have differed in the field of Human Rights were related much more to the way of wording juridical principles and guaranteeing protection than to acknowledgement of the rights themselves.

The Government of Québec has committed itself to seeking early legislative adoption of a Quebec charter of human rights and to the appointment of an ombudsman. We have examined these two questions very closely during the past few months and hope soon to be able to introduce specific and relevant legislation before the Assembly.

The interest in human rights shown by the population of our Province is considerable not only on the part of the public bodies responsible for law enforcement, but also among the citizens themselves, who have set up a League of human rights.

As regards the proposal for a constitutional declaration of human rights, we have thought it advisable to reserve our position for a number of reasons, as follows:

Owing to their philosophical and juridical nature, bills of rights are difficult to put into words whenever attempt is made to incorporate effective sanctions. Just as it was relavitely easy at the United Nations in 1948 to reach agreement by an impressive number of countries on a Universal Declaration of Human Rights of a general nature, so were these countries extremely careful in wording their own constitution to this effect.

The Universal Declaration of Human Rights contains no provisions for sanctions applicable ei [sic] her within a given state or on an international scale. As regards the 1966 international covenants on human rights and the related optional protocol, implementation on an international basis is guaranteed only by rather meek provisions. At the opposite, a constitutional text duly passed by a state’s legitimate authority would likely be enforced very quickly by the courts, irrespectively of whether public opinion is sufficiently sensitive to the problem and even before signs of favourable tradition become apparent.

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In a unitary country with a homogeneous society, it is possible to think of bills of rights as summarizing the ethical philosophy endorsed by the whole population, and to allow all the other rights of the citizens to proceed from them. The result is the acceptance in the constitution of a trend towards homogeneity of ethical concepts whose recognition becomes the responsibility of the courts. We feel that in a federal system and especially in the case of Canada it would be a serious political error to proceed in this way. By tradition, civil law in Québec, and the manner in which it acknowledges and upholds fundamental rights, differ greatly from common law procedures. Should a bill of rights be considered so essential as to be entrusted in its interpretation to a constitutional court, we must insist on the institution of that tribunal being examined first.

A third difficulty stems from Canadas’ federal character and the present distribution of powers. Property and civil rights in this country are the exclusive responsibility of the Provinces. We are not prepared to waive this responsibility. As we have pointed out we intend to incorporate into Québec’s constitution a charter of human rights. Preliminary work has been carried out to this effect, and commented not only in newspapers of our Province but also in certain legal reviews. We were able to observe how very carefully these matters have to be handled.

Within a federative context, it is essential to specify clearly which authority will be responsible for ensuring that fundamental rights are respected. We mentioned earlier two possibilities which we rejected: first, that the federal government and federal courts be given exclusive powers in this field; second, at least as far as Québec is concerned, that there be indirect encroachment on provincial jurisdiction as it relates to property and civil rights. Consequently, it seems wise for us for the moment to refrain from saying anything that might be construed as a preconceived attitude.

Generally speaking, moreover, we are inclined to believe that a bill of rights should be the last part to be added to the constitution. We are not suggesting that this part is of little importance or that it cannot be discussed

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from the outset; rather, we feel that it would more appropriately fall within the purview of an ad hoc commission appointed by this conference and whose recommendations would bear not only on the contents but also on the form and relative sequence of the bill or bills of rights in question. Myriad of examples can be drawn from other countries which have recently adopted constitutions.

We have gone rapidly through the federal draft proposal tabled in Ottawa on February 1st by the Minister of Justice of Canada.

Naturally, we were not able to give this text the full attention it deserves, but we are nonetheless in a position to make a few comments which will put the complexity of the subject into better focus:

(a) The federal draft proposal indicates very well that if a Charter of Rights became part of the constitution, it would gain a character of permanence so that an amendment to that Charter would require not just an ordinary legislative decision but the more rigorous procedure of an amendment to the constitution itself. This is the very argument that we invoke in support of our request for a new constitution with a rigorous and entirely Canadian amending formula.

(b) As constituent states of the federation, the provinces are affected by all constitutional matters. No constitutional amendment should therefore be effected without the Provinces having been consulted directly and as a matter of priority. In other words, we do not accept that the Federal Government or any Provincial Government be able to go directly to the population, either by way of the Federal Parliament alone, or a referendum, or a Royal Commission, or a White Paper, without having beforehand consulted or sought the advice of the Provinces not only on the principle but also on the details of every proposal or provision. We therefore consider this White Paper as a simple working paper of the Conference, the advanced publication of which in no way creates a precedent.

(c) Two of the documents appended, that is the international covenant on economic, social and cultural rights and the international covenant on civil and politi-

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cal rights (as well as the protocol relating to this latter convenant [sic]) contain a clause to the effect that their provisions shall apply without limitation nor exception whatsoever to all constitutive units of federated states. This clause is in direct opposition to our constitutional law and in no way can we accept it, for it would result in permitting the Federal Government to legislate in provincial matters under the cover of international agreements. It is high time a study in depth be made on this question of international agreements and of the international relations of the Provinces.

(d) We have already indicated on several occasions that because of the way in which the Supreme Court is constituted, it is difficult to accept this court as a constitutional tribunal of last resort. This important point will have to be included in a new constitution before we can concur in a constitutional bill of rights. On this subject, we think it necessary to point out that the various agreements appended all provide for a special court to bring judgment in disputes between states in these matters.

(e) We have noted on page 20, in relation to religious freedom, a reference to the Lord’s Day Act. We feel that this does not come under Criminal Law, despite the opinion of the Supreme Court, but comes under the maintenance of public order, which comes within provincial jurisdiction. This example shows clearly that constitutional changes have become necessary before the adoption of a bill of rights.

(f) The White Paper does not mention minority rights nor the rights of groups. One would have expected greater precision on the chapter of rights to equality.

(g) Because bills of rights embrace very large categories, they give rise to either legislation of detail or interpretation by the courts. It therefore becomes extremely important that the residual categories of powers be clearly defined. We would be much less preoccupied with this if residual powers were attributed to the Provinces.

These few remarks will suffice to show why certain specialists hold that these matters are

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the last provisions that should be inserted in a constitution, and after having been the object of a report by an ad hoc committee.

Being of the opinion that fundamental freedoms are of prime importance for the future of Canada and having shown in the past its deep concern for the rights of minorities, the Government of Québec will bring a high degree of attention to this question. Not being able for the moment to go beyond a statement of principle, we nevertheless want to express our agreement with the motives which have inspired the various appended statements in the White Paper and we wish to assure the other Canadian provinces of our co-operation with them and with the Federal Government to protect freedoms and fundamental rights in the framework of a new constitution.

DOCUMENT NO. 94 6-2-69

CONSTITUTIONAL CONFERENCE

SUB-COMMITTEE ON

OFFICIAL LANGUAGES

Note from Secretariat

Attached is Bill 85 of the Legislative Assembly of Quebec which may be of special interest to the members of the Sub-Committee.

Third Session, Twenty-Eight Legislature

LEGISLATIVE ASSEMBLY OF QUÉBEC BILL 85

An Act to amend the Education Department Act, the Superior Council of Education Act and the Education Act

First reading

EXPLANATORY NOTES

The object of this bill is to specify the role of the French language in the field of education in the Province of Québec. It entrusts the Minister of Education with new responsibilities respecting the steps to be taken to ensure that persons who settle in Québec and their children, and also persons who attend English-language public educational institutions

[Interpretation]

person-there, may have a working knowledge of the French language. It also provides for the

[Text]

Establishment, by a committee of the Superior Council of Education constituted by the bill

[Page 93]

under the name of the “Linguistic Committee”, of regulations whereby the Minister will recognize public educational institutions as being English-language or French-language institutions.

Section 1 makes the Minister of Education responsible for taking, in co-operation with the Minister of Immigration, the measures necessary to ensure that persons settling in the Province of Québec may acquire, upon arrival, a working knowledge of the French language and cause their children to be taught in schools recognized by the Minister as being French-language institutions.

Sections 2 to 7 establish the Linguistic Committee of the Superior Council of Education. This committee, like the other committees of the Council, will be composed of 15 members, ten of them French-speaking and five English-speaking. The members will be appointed by the Government on the recommendation of the Council, which will first have consulted the associations or organizations most representative of the educators and of the parents of the French and English linguistic groups of the Province of Québec.

Section 8 defines, the powers of the Linguistic Committee: its functions will be:

(a) to make regulations under which the Minister of Education will recognize the public educational institutions as being French-language or English-language institutions;

(b) to make regulations governing the curricula and examinations for all subjects in the institutions recognized as being English language institutions, in such a manner as to ensure a working knowledge of the French-language to persons who attend such institutions;

(c) to make to the Council or the Minister recommendations, particularly as to the qualifications, from a linguistic point of view, of the administrative staff and the teaching staff of all public educational institutions.

The regulations of the Committee must be approved by the Government, laid before the Legislature forthwith and published in the Québec Official Gazette.

Section 9 is a concordance provision.

Section 10 adds to the duties of school commissioners and trustees under the Education Act those of taking the measures necessary to

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ensure that the courses of study that they are required to give from the first to the eleventh year are no longer merely those adopted or recognized for Catholic or Protestant public schools, but also those adopted or recognized for English-language or French-language schools. Such courses will be given to all children domiciled in the territory under their jurisdiction if they are deemed capable of following such courses and if their parents or the persons acting in their stead are desirous of enrolling them therein.

The commissioners must also ensure that the courses given in their schools comply with the regulations made or approved not only for Catholic or Protestant, but also for French-language or English-language schools.

Any resolution which derogates from the duties so imposed on the commissioners or trustees may be annulled by the Minister at the request of any interested party, after consulting the Linguistic Committee of the Superior Council of Education which will have 90 days to give its advice.

BILL 85

An Act to amend the Education Department Act, the Superior Council of Education Act and the Education Act

HER MAJESTY, with the advice and consent of the Legislative Council and of the Legislative Assembly of Québec, enacts as follows:

1. Section 2 of the Education Department Act (Revised Statutes, 1964, chapter 233) is amended by adding at the end of section 2 the following paragraph:

“The Minister shall also be responsible for taking, in co-operation with the Minister of Immigration, the measures necessary to ensure that persons settling in the Province of Québec may acquire, upon arrival, a working knowledge of the French language and cause their children to be taught in schools recognized by the Minister as being French language schools”.

2. The Superior Council of Education Act (Revised Statutes, 1964, chapter 234) is amended by inserting, after the words “a Protestant committee” in the sixth line of the fourth paragraph of the preamble, the words “, a Linguistic Committee”.
3. Section 6 of the said act is amended by replacing the word “two” in the first line by the word “three”.

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4. Section 15 of the said act is replaced by the following:

“15. A Catholic committee, a Protestant committee and a Linguistic Committee of the Council, each consisting of fifteen members, are established.”.

5. The said act is amended by inserting after section 17 the following:

“17a. The Linguistic Committee shall consist of ten French-speaking representatives and five English-speaking representatives.

Such representatives shall be appointed by the Lieutenant-Governor in Council on the recommendation of the Council which shall first consult the associations or organizations most representative of the educators and of the parents of the French and English linguistic groups of the Province of Québec.”.

6. Section 19 of the said act is amended by adding at the end of the first paragraph the following: “He shall be ex officio an associate member of the linguistic committee”.
7. Section 22 of the said act is amended by replacing the words “such committees” in the first and second lines by the words “the Catholic committee and the Protestant committee”.
8. The said act is amended by inserting after section 22 the following:

“22a. It shall be the duty of the Linguistic Committee:

(a) to make regulations under which the Minister shall recognize as being French-language or English-language institutions the educational institutions subject to the regulations contemplated in sub-paragraph b of section 28;

(b) to make regulations governing the curricula and examinations for all subjects except subjects leading to a university degree and private education not leading to a diploma conferred under the authority of the Minister, in such a manner as to ensure a working knowledge of the French language to every person who attends an institution contemplated in sub-paragraph a and recognized as being an English-language institution;

(c) to make recommendations to the Council or to the Minister respecting any matter within its competence, and particularly as to the qualifications, from a linguistic point of view, of the administrative staff and the teaching staff in the institutions contemplated in sub-paragraph a and recognized as being English-language or French-language institutions.

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The regulations made under this section shall come into force after approval by the Lieutenant-Governor in Council; they shall be laid before the Legislative Assembly forthwith and published in the Quebec Official Gazette.”

9. Section 28 of the said act is amended by replacing the words “in section 22” in the second line of sub-paragraph b by the words “in sections 22 and 22a”.
10. Section 203 of the Education Act (Revised Statutes, 1964, chapter 235), amended by section 1 of the act 15-16 Elizabeth II, chapter 62, is again amended:

(a) by replacing sub-paragraph 3 by the following:

“(3) To take the measures necessary to have the courses of study from the first year level to the eleventh year level inclusive, adopted or recognized for Catholic or Protestant, English-language or French-language public schools, as the case may be, given to all the children domiciled in the territory under their jurisdiction if they are deemed capable of following such courses and if their parents or the persons acting in their stead are desirous of enrolling them therein. For such purposes, the school commissioners or trustees must either establish such courses in their schools or avail themselves of the provisions of sections 469 to 495, or of those of section 496, or take two or more of such steps at the same time;”

(b) by inserting after the word “Protestant” in the fourth line of sub-paragraph 4 the following: English-language or French-language”;

(c) by adding after sub-paragraph 17 the following paragraph:

“At the request of any interested party, a resolution which derogates from sub-paragraph 3 or 4 of this section shall be submitted to the Minister. He may approve, amend or annul it ninety days after he has taken the advice of the Linguistic Committee of the Superior Council of Education, or sooner if he has already received such advice. The decision of the Minister shall be communicated forthwith to the interested party and shall be homologated by the Provincial Court upon the application of the Minister or of the interested party.”.

11. This act shall come into force on a date to be fixed by proclamation of the Lieutenant-Governor in Council, except section 1 which shall come into force on the day of its sanction.

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EXTRACTED FROM DOCUMENT 8(12)—RELATED PROPOSITIONS

SUBJECT: I—GENERAL PROVISIONS

OFFICIAL LANGUAGES

4.9.14 It is essential that English and French be declared the official languages of the Canadian Union. Their use could be governed by provisions based on the recommendations contained in Book I of the Report by the Commission on Bilingualism and Biculturalism and protected by an intergovernmental commission made up of an equal number of English-speaking and French-speaking members.

COMMENTS

1. Québec’s attitude on this matter was clearly set forth in her Brief on the Constitution and will be explained in more detail within the Sub-Committee formed to study the question.
2. It goes without saying that, unlike the British North America Acts of 1867 to 1965, the new Canadian constitution should be drafted in English and French, both versions to be official and of equal value.

SUBJECT: VIII—HUMAN RIGHTS

LEGISLATIVE IMPLEMENTATION AND

JUDICIAL SANCTION OF

HUMAN RIGHTS

4.25.46 It would be well to specify that implementing the basic rights of the human person belongs both to the Union—for matters within its competence—and to the states—for matters under their constitutional authority.

The constitutional court would have exclusive jurisdiction over any legal action in which recognition of basic human rights is at issue.

COMMENTS

1. In a federal context, it seems to us essential that implementing basic rights should not trespass directly or indirectly on any government’s competence as established under the constitution. Each government must remain responsible to its constituents for the way it carries out its constitutional duties.
2. Obviously, a law contrary to the constitutional declaration of rights could be declared unconstitutional.
3. The Constitutional Court should have exclusive jurisdiction over all litigation which might lead to declaring a law unconstitutional because it infringes the basic rights of the human person. Any action of this sort should automatically come before the Constitutional Court.

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ONTARIO—SECTION 6

DOCUMENT 41

Statement by: Honourable William G. Davis, Minister of Education for Ontario Regarding: French Language Schools

The legislation which I have the honour of introducing today, Mr. Speaker, can be truly termed historic, not only for this province but also, I believe, for Canada. It sets out the legal provisions for the establishment of French-language schools at both the elementary and secondary school levels. No specific statutory guarantee has ever before been made for French-language schools in Ontario.

Before dealing generally with the contents of the legislation, I should like to trace briefly the background leading up to the creation of the special Ministerial Committee on French- language secondary schools and the work of that Committee.

In August of last year, the Prime Minister, the Honourable John P. Robarts, speaking to the Association Canadienne des Éducateurs de langue-française stated:

…we believe that Canadians of French origin must be guaranteed certain basic rights and privileges. We recognize and are in sympathy with your desire as French-speaking people in Canada to preserve your language, customs and culture as an integral part of Canadian life.

Although language is not the only means of preserving a culture, it is the most central and obvious means. In the first volume of the final Report of the Royal Commission on Bilingualism and Biculturalism, entitled “The Official Languages,” the relationship between language and culture is succinctly put:

. . . language is in the first place an essential expression of a culture in the full sense of the word; from the intellectual standpoint language is certainly the most typical expression of culture. As a means of communication, language is the natural vehicle for a host of other elements of culture. It fulfils this function in many ways. Not only does it convey the notions and modes of expression which are part of a culture, it is also the means by which a cultural group discovers and assimilates new elements originating out- side it.

It is in this context that the French-speaking community in Ontario has always looked upon education as one of the most important,

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if not the most important, force for survival as a cultural group. Education in his mother tongue permits the Franco-Ontarian to receive the values of his society and his way of life in the same way an English-speaking Ontarian does in schools where English is the language of instruction and communication. Both for himself and his children the Franco-Ontarian wants to preserve his linguistic and cultural heritage. This natural desire is not an attempt to draw a curtain around or to shut out the overwhelming presence of English-speaking North America. On the contrary, the desire of the Franco-Ontarian to live in a French milieu is perfectly harmonious with the equal desire to contribute fully to the cultural, economic and technical progress of his province and of his country. It is with these considerations in mind that the government approached the question of French-language education in Ontario.

It is important to note that French as a language of instruction in Ontario schools can be traced to the early French settlements. The use of French, then, as a language of instruction is not something new in this province.

Today we find that there is a well-established system of education in which instruction may be given in the French language to the end of grade eight and, in some cases, to the end of grade ten. This latter arrangement evolved at the end of the last century when many elementary schools also provided grades nine and ten because the nearest secondary school was too far away.

It must be clearly understood then that historically the principle of bilingual education for the French-speaking people of Ontario has been recognized. By compromise and agreement this principle has gradually been extended until today the availability of French-language education at the elementary level is quite substantial.

In September 1967 there were 89,483 French-speaking pupils attending elementary schools in which French was a language of instruction. Of these 87,024 attended 372 French-language separate schools and the remaining 2,459 attended 13 French-language public schools.

At the secondary level there are, at the present time, schools in some forty communities offering an instructional program in French in at least one or more of the following subjects: History, Geography, Latin and, of course, Français. As of September 1967 there were 10,541 pupils registered in the schools offering one or more of these courses. In addition 5,121 French-speaking pupils were attending the grades nine and ten of the sepa-

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rate schools and 3,030 pupils were in private Franco-Ontarian institutions.

Several years ago, negotiations took place whereby the Univesity [sic] of Ottawa became eligible for full participation in provincial government grants along with the other universities of the province. Both Laurentian University and the University of Ottawa receive grants in excess of the pattern for other institutions to assist them to meet the costs inherent in carrying on programs in both English and French.

In the area of Teacher Education, there are two bilingual Teachers’ Colleges operated by the Province. One is in Ottawa and a second bilingual Teachers’ College was established three years ago at Sudbury in accommodation provided at Laurentian University.

The major problem which has faced a great many of the French-speaking graduates of the elementary schools is that, apart from the four courses previously mentioned, all secondary education is given in English. This has placed a severe handicap on the French-speaking student who moves from a school in which most of his subjects are taught in French, to one in which practically all the instruction is in English. The result has been an inordinately high rate of drop-outs among the young people of the Franco-Ontarian community.

In effect three choices have, in the past few years, presented themselves to the Franco-Ontarian student at the end of elementary school:

(a) If his parents had enough money he could go to a denominational private school where French was the language of instruction. However these institutions did not offer the wide range of courses found in the secondary schools of the province. They offered the academic course but not the technical and vocational programs of the public system.

(b) In certain public secondary schools History, Geography, Latin and Français were offered in French but no technical or vocational courses were given in that language.

(c) Finally the Franco-Ontarian student had the option of attending the English- language composite secondary school in his area. Yet it is difficult, after four or five years, for the student to retain anything but a tenuous connnection [sic] with he French language and culture.

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This, then was the problem. At the secondary level steps had to be taken to extend the availability of instruction in the language of the Franco-Ontarian community. With these ideas in mind the Prime Minister, last August, stated that the Government of Ontario would aim to provide, within the public school system of Ontario, secondary schools in which the language of instruction was French. This decision was but the logical extension of the program of French-language instruction at the elementary level and complemented the present bilingual university program.

The Prime Minister announced, in the same speech, that:

. . . The Government of Ontario will direct the Department of Education to proceed with the establishment of a committee whose terms of reference will be to advise the Government as to the procedures required to provide adequate opportunities in the public education system for those who are primarily French-speaking.

He said he was not proposing to develop another system of secondary schools parallel to the existing framework. Rather, within the present system, the fullest possible range of programs and options in the French language would be offered. He emphasized that the province was not creating an exclusively French-language system of education. Special attention would have to be paid to the teaching of English in the new schools so that graduates of the French-language secondary schools would be able to compete with their English-speaking compatriots on the labour market and participate fully in the life of Ontario and Canada. As the new schools would be part of the existing public system they would receive the same financial aid as other secondary schools.

On November 24, 1967 I announced the creation of a Committee on French-language Secondary Schools. The Chairman of the Committee is Mr. Roland R. Bériault of the Department of Education’s Policy and Development Council. The other members of the Committee are: Mr. H.A. Blanchard, Assistant Director, Teacher Education Branch; Mr. Thomas Campbell, Executive Assistant to the Deputy Minister; Mr. H. W. Cyr, Assistant Superintendent, Curriculum Section; Dr. L. Desjarlais, Dean of the University of Ottawa’s Faculty of Education; Brother Orner Deslauriers, President of the Franco-Ontarian Private Schools Association; Mr. Vincent Gauthier, Administrator of the Ontario Bilingual School Trustees Association; Mrs. Elsie Grossberg, a member of the Toronto Board of Edu-

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cation and Chairman of the Ontario School Trustees Council; Brother Maurice Lapointe, Principal of LaSalle Academy in Ottawa and 2nd Vice-Président of the Ontario Teachers’ Federation; Mr. Jacques Leduc, Vice-Président of l’Association Canadienne-française d’Éducation d’Ontario; and Mr. A. H. McKague, Superintendent of the Supervision Section. The Secretary is Mr. Charles Beer of the Federal-Provincial Affairs Secretariat in the Treasury Department.

The membership of the Committee reflects not only the French and English-speaking people of the province, but also the various groups and associations concerned with education in Ontario. In this way the Government ensured it would receive the best possible advice. The twelve Committee members have met for two days every two weeks since early December to suggest the ways and means by which the Government could implement the policy enunciated by the Prime Minister. I should like to take this occasion to commend publicly their work.

The first and most immediate task of the Committee was to study the legal and procedural requirements needed to provide the guarantees necessary for the establishment of the French-language secondary schools wherever the numbers could provide a viable unit. It was soon evident that this question of French-language instruction at the secondary level could not be viewed in isolation. It had to be examined in the light of practices at the elementary level. For this reason the Committee also prepared legislation concerning French-language elementary schools.

I should now like to move to the legislation itself and outline the major points therein.

The legislation proposed by the government involves amendments to three acts:

(1) The Department of Education Act,

(2) The Schools Administration Act, and

(3) The Secondary Schools and Boards of Education Act.

The amendment to the Department of Education Act will give the Minister of Education the power to make regulations prescribing the language of instruction which may be used in the elementary and secondary schools of the Province.

Amendments are being introduced to the Schools Administration Act. They cover the legal provision for establishing French-language elementary schools or classes; and the language of instruction and communication used by teachers in schools and classes.

Finally an amendment is proposed to the Secondary Schools and Boards of Education

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Act. It would add a new Part to the Act to establish French-language secondary schools and classes.

The major sections of these proposed changes concern, of course, the provisions for French-language elementary and secondary schools.

At the secondary level the ideal situation, in the government’s view, would be the establishment of French-language composite schools providing ail options and programs. Such a situation can be achieved in some areas, but the government recognizes that due to a shortage of pupils this cannot be done everywhere. It has, therefore, proposed legislation to cover a variety of cases.

Three basic situations have to be provided for:

(1) Classes for “Français” and other subjects

(2) French-language branches or sections within a Secondary School, and

(3) French-language composite schools.

In some areas it may only be possible to provide one class of Français and perhaps one or two other subjects in French. In other areas a complete Arts and Science program and some commercial subjects could be started. The intent of the legislation is, however, that a divisional board will provide the fullest program possible.

The requirements for establishing a French-language composite school will be the same as those used to create English-language composite schools. At the present time such schools are built for a student population of 1,000, although this is not a rigid rule. In some instances composite schools have been set up for less than this number, if the situation warranted. The policy of the Department of Education is to project secondary school enrolment on a five year basis using forty to forty-five per cent of the pupil population in the elementary schools as a base. In this way plans will be made for the construction of French-language composite schools.

To represent the views of the Franco-Ontario community to the divisional board, a special committee is being created within each divisional area. The name given this committee is the French Language Committee. The French Language Committee will be composed of seven members, four of whom

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will be elected by the French-speaking ratepayers of a division. The remaining three members would be trustees appointed by the board.

The procedure required to create a French Language Committee will be as follows:

(a) If ten or more French-speaking ratepayers of a school division apply in writing to the dividisional [sic] board for French-language instruction; or

(b) if the board introduces or plans to introduce a program of French-language instruction; or

(c) if the board extends an existing French-language program.

These stipulations would cover all situations and permit the Franco-Ontarians to make recommendations on the whole question of French-language instruction at the secondary level, whether it be a composite school, a branch or section within a secondary school or classes within a secondary school.

The method of electing the four French-speaking ratepayers to the French Language Committee will be for the divisional board to call a general meeting of all French-speaking ratepayers within the divisional area. Once elected the names of the four members will be forwarded to the board.

The most important function of the French Language Committee will be to make recommendations to meet the educational and cultural needs of the French-speaking pupils.

Yet it must be kept clearly in mind that the final decision and the final responsibility for the French-language secondary schools will rest with the divisional board elected by all the people of the divisional area. The French Language Committee will report at each regular meeting of the board and will act in a way similar to that of an advisory committee. We are not creating another school board.

The legislation also provides that English shall be an obligatory daily subject of instruction for all pupils of grades nine to twelve. In addition to acquiring a complete command of the French language and culture, the Franco-Ontarian student will need a complementary and adequate knowledge of English. A great deal of work has been done within the Department of Education to pre- pare special English courses for French-speaking pupils.

In a study prepared for the Ontario Curriculum Institute (now a part of the Ontario Institute for Studies in Education) in 1965 entitled “English as a Second Language,” the following definition was given of what could

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be expected of the bilingual graduate of a French-language secondary school:

(1) [He should] have gained acknowledge of French that is as complete as the level of intellectual abilities of the average graduate of these institutions will allow. French is his dominant and first language and should be studied with cultural as well as pragmatic aims in view. His knowledge and command of French must allow him to live fully his life as a Canadian of French descent who can benefit from and actively participate in the cultural life of the French-speaking Canadians and of the members of the French world community.

(2) [He should] have gained a pragmatic and instrumental knowledge of English which will allow him to

(a) communicate effectively with his English-speaking compatriots;

(b) meet the competition of English- speaking workers of equal occupational skill;

(c) take part in the political, civic and social activities of his community.

(3) [He should] have gained an understanding, after having acquired the basic linguistic skills, of the value systems and cultural patterns of his English-speaking compatriots.

The government believes this to be a reasonable goal for the French-language secondary schools to try to attain. The Franco-Ontarians themselves have often stated the need to acquire an effective command of English.

The legislation concerning the French-language elementary schools parallels that for the secondary schools. Provisions for French-language classes and schools are set out. English, as a subject of instruction, for French-speaking pupils is made obligatory from grade five on.

Finally it should be emphasized that this legislation does not encroach upon the rights of the members of the English-speaking community to have their own classes or schools, wherever feasible. The establishment of English-language elementary and secondary schools and classes is provided for. And provisions are also made by which an English-speaking pupil will be permitted to take his courses in the French-language schools.

These then are the major aspects of the legislation. With the creation of French-language schools at the secondary level, there will be assured to every French-speaking student in the province the opportunity to receive his education from kindergarten

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through university, graduate school and teacher education in the language of his first choice.

There is one last point, Mr. Speaker, which I believe cannot be underestimated. Since the Prime Minister’s speech of last August local school boards have proceeded with the implementation of the government’s policy on French-language education for French-speaking pupils. This has been especially encouraging for it means that French-language schools and classes will begin in several centres this September. It indicates that the divisional boards and the French Language Committees already have a precedent for working together harmoniously and effectively.

The legislation presented today provides the framework for the new schools. Its implementation will allow French-speaking Canadian in Ontario to maintain their rich heritage and to contribute to a positive influence in this province and in Canada. I am confident that in he next few years French- language instruction in this province will be the equal of that given anywhere in the country.

EXTRACTED FROM DOCUMENT 81(2)—RELATED PROPOSITIONS

5.6.12. All governments in Canada should provide, wherever practicable, public services in the English and French languages.

In principle, the concept of a bilingual Canada must include the recognition that all citizens should be able to deal in either of the two official languages with the various levels of government with which they come into contact. In practice, it will be necessary to provide such services wherever the minority is large enough, for example, ten per cent or more of an area’s population. These ser- vices would include such matters as education, justice, Parliament and the provincial legislatures, and all government administration.

The emphasis would not be to create a country in which all the citizens would speak or would have to speak two languages. Rather, it would be to create a country where the principal public institutions would provide services in both of the two official languages.

5.7.13. All Canadian parents should, as a matter of equity, be able to have their children educated in either or both of the official languages.

If Canada is to be a bilingual country, it is vital to ensure that parents be permitted to have their children educated in either or both of the official languages. This is particularly

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important for parents and children of the minority official language group in any province.

It is necessary to ensure that children of the minority official language group acquire a sound command of the official language of the majority in their province.

At present, the provision of education in either language or both languages cannot be exercised everywhere to the same degree. To a great extent, it will depend on the concentration of students and on the availability of teachers and facilities. In some cases, classes will be started at the elementary or secondary level in the instruction of the minority language alone. Other areas may be able to provide much more. The ideal would be to have an entire school in which there were enough students to warrant a complete French- or English-language program.

The methods of extending this provision as widely as possible are more complex. Each province has a separate educational system, and has different percentages of the two official language groups. The Council of Ministers of Education should play an important role in furthering the provision of education in French and English by facilitating exchanges of personnel and information, and furthering the extension of French and English as languages of instruction at all levels.

Any matter included in the written Constitution should not be capable of unilateral amendment by any jurisdiction.

The written Constitution of a federal country should outline the nature of the political system, should describe the institutions of government, and should establish the distribution of powers. These matters are placed in the Constitution to ensure their relative permanence, that is, to ensure that they cannot easily be altered.

Those matters which are less important and which can be amended by one jurisdiction should not be included in the written Constitution.

SUBJECT: FUNDAMENTAL RIGHTS

5.7.15. The fundamental rights of Canadians should be clearly expressed and guaranteed by positive legislative enactment.

The fundamental rights of Canadians, both political and legal, have received protection by statutory and customary means since 1867. In order that all Canadians may better understand and uniformly benefit from these rights, their clearer and more permanent expression is now desirable.

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5.8.15. Any restatement of these rights must meet the requirements of our federal system of government in a manner consistent with the spririt [sic] of Canadian law and custom. Entrenchment is not necessarily contrary to this spirit, for example, Secs. 93, 133 of the B.N.A. Act.

These rights should be expressed in a form which will reflect their development in our laws over the years; any new expression of them must be applied so as not to diminish any existing right recognized by law or usage.

These rights, once expressed, should be invoked and applied by Parliament and the legislatures of the provinces in all relevant statutory enactments within their respective jurisdictions, and by the courts and administrative tribunals in all cases which come before them.

The following propositions 5.18.41 to 5.24.53. were submitted by the Government of Ontario on April 16, 1969.

SUBJECT: FUNDAMENTAL RIGHTS

5.18.41. The written Constitution of Canada should guarantee to each individual certain fundamental freedoms which are basic to our democratic system of government. These include freedom of conscience and religion; freedom of speech and expression; freedom of assembly and association; the right to vote; and regular elections. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

EXPLANATION

1. Fundamental freedoms, as outlined above, are part of the fabric of our political system, and belong in our Constitution for that reason.
2. Oher rights and freedoms, whether the legislative responsibility of the federal or the provincial governments, should be protected in the way that experience has shown to be the most effective. For example, protection against discrimination is best assured by legislation such as the Ontario Human Rights Code, and the effective provision of legal protection to those who need, it is best provided through legal aid plans.

[Page 109]

3. In any society, the exercise of personal freedoms must be limited so that the freedom of others can be ensured. In determining the extent of an individual’s freedom, these constraints must always be assumed. It is therefore important, when drafting a constitutional charter which would contain such freedoms, to include the corresponding restraints, expressed in a manner such as the sentence in the proposition above, which is taken from the Universal Declaration of Human Rights. At the same time, the validity of certain existing restraints should be examined.

5.18.42 An extensive review and revision of existing laws, to ensure their compatibility with a Bill of Rights, is desirable and would be consistent with the concern for fundamental freedoms reflected in the entrenchment of such a bill.

EXPLANATION

1. No guarantee of rights, however entrenched, can be effective without a legislative and administrative commitment to the spirit of that guarantee. This places a responsibility on the provinces in their fields of legislative jurisdiction and administrative practice, as well as on Parliament, to respect these rights.
2. There are several forms that a review of legislation might take: a law reform commission, a special commissioner, or a review by the Department of Justice in each jurisdiction. It would then fall to individual governments to carry out the appropriate revisions of their laws.
3. Although such a review and revision of existing laws might remedy certain deficiencies with respect to fundamental rights, this action is not a prerequisite of a bill of rights, since such a bill should serve primarily to protect the citizen who disagrees with the legislative and administrative interpretation of his rights.

MANITOBA—SECTION 7

EXTRACTED FROM DOCUMENT 207

Statements by the Honourable Edward Schreyer Presented at the Third Constitutional Conference.—(Chap. 5).

FUNDAMENTAL RIGHTS

One of the more important responsibilities of those participating in these Constitutional Conferences is to fashion appropriate methods to protect the Fundamental Human Rights of Canadians.

Because “Fundamental Human Rights” embrace a very broad and diverse range of

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rights—including, for example, such disimilar [sic] matters as freedom of speech, the presumption of innonce [sic], freedom from discrimination, and entitlement to a Humane Standard of Social Welfare—it would be unrealistic to expect that they can all be adequately shielded by any single method of protection. In some areas, constitutional entrenchment will be effective, while in others different forms of protection might be more suitable. But no particular method should be regarded as a panacea—the task of protecting fundamental rights should be tackled on all fronts, by everry [sic] method that appears appropriate to the specific right in question.

Leaving aside language rights, which will be dealt with in a separate statement, Fundamental Human Rights are commonly classified into four groups:

(a) Political Rights,

(b) Legal Rights,

(c) Egalitarian Rights, and

(d) Social and Economic Rights.

I will deal with each type of right separately.

POLITICAL RIGHTS

Political rights should be entrenched by a charter of Fundamental Human Rights that can only be altered by constitutional amendment.

Some democratic rights are of such fundamental importance that they even require protection from the possibility that they may be disregarded by a majority of elected representatives in Parliament or the Provincial Legislatures. The British North America Act has always included some protections of this kind. For example, the requirement of a federal election at least every five years, and the Language Rights set out in section 133 are constitutionally entrenched.

The Government of Manitoba believes that this group of constitutionally guaranteed rights should be expanded 1o include all rights that are of fundamental importance to the preservation of democratic government. Among these rights would certainly be the guarantee of democratic elections, and the basic “Communicative” freedoms of speech, press, assembly and religion. Certain other rights, such as equal protection of the law, Habeas Corpus and fair trial, and reasonable security of life and liberty, should probably be included also, since without them it would be difficult to ensure that free elections and the communicative freedoms were more than mere formalities.

[Page 111]

It would be naive to expect that a charter of Fundamental Human Rights could be drafted in a form that would be satisfactory for all time to come, so it would have to be possible to amend the charter. Legislatures could not be allowed to circumvent the charter whenever they found its provisions inconvenient, yet the charter could not be allowed to prevent legislative action that a majority of the nation deemed, after mature consideration, to be necessary. Further discussion of the general amendment formula may not be productive at this stage of the constitution review, but this does not mean that study of a charter of Fundamental Human Rights cannot continue. We suggest that discussions proceed on the assumption that relatively simple procedure—such as consent by Parliament and a majority of Provincial Legislatures— would apply to amendment of the Charter of Fundamental Human Rights.

LEGAL RIGHTS

There are many legal safeguards to which most would agree an individual who comes into conflict with the authority of the state ought to be entitled, but which are not suitable for constitutional entrenchment. These would include, among others, the presumption of innocence, the right to counsel, freedom from unreasonable searches and seizures, reasonable security of property rights, and freedom from retroactive legislation.

Such rights ought, in the opinion of the Manitoba Government, to be protected at both the Federal and Provincial levels by statutory bills of Rights. Such Bills, although not constitutionally entrenched, would be written in such a way that they would apply to all legislation passed before or after their adoption, unless expressly stated to be immune from their provisions.

There has been wide disappointment in recent years with the inability of the Canadian Bill of Rights, 1960, to provide meaningful protection for civil liberties. However, the decision of the Supreme Court of Canada in the Drybones case a few weeks ago has given the Bill of Rights a new lease on life, and I submit that, with some amendments, it is capable of becoming an important bulwark of human rights.

A federal statutory Bill of Rights cannot, however, provide protection in areas within the legislative jurisdiction of the provinces. There is, therefore, a clear need for parallel

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legislation at the provincial level, and it is the intention of the government of Manitoba to place before the Manitoba Legislature soon a Manitoba Bill of Rights.

EGALITARIAN RIGHTS

By “Egalitarian Rights” I mean freedom from discrimination in employment, housing, and public accommodation and services, whether such discrimination is based on race, religion, ethnic origin, or sex.

One of the most effective methods of combatting such discrimination is by the creation of human rights commissions. It would advance the interests of human rights protection greatly if human rights commissions were established in each province, and perhaps at the federal level as well. Several provinces have already taken this important step, and the government of Manitoba intends to propose similar legislation to the Manitoba legislature soon.

Another form protection of egalitarian rights that Manitoba supports is the inclusion of such rights in federal and provincial statutory bills of rights.

SOCIAL AND ECONOMIC RIGHTS

The government of Manitoba believes that the constitution would be incomplete if it did not recognize the duty of governments to ensure humane standards of social welfare and other important social and economic benefits for all Canadians. The need for such benefits and the ability of governments to meet them will vary considerably from time to time, of course, but the constitution ought, in its preamble, to state that the fulfillment of this duty is one of the objectives of Canadian federatism.

LANGUAGE RIGHTS

Mr. President, I have already delcared [sic], yesterday, that the government of Manitoba agreed with several recommendations proclaimed by your Government.

I have also indicated that we await with great anticipation volume 4 of the Royal Commission on Bilingualism and Biculturalism which I understand will make specific recommendations on the ways and means to assure the preservation of the cultural mosaic in Canada. You know undoubtedly that the government of Manitoba agreed with your government’s spirit and recommendations aimed at protecting the language rights of the two official minorities and also the concrete dispositions you are proposing for translation into facts. Besides I have declared recently at St. Boniface that the government of Manitoba

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is presently drafting a bill aimed at doing away with the 1890 spirit proclaiming English the only official language in our province. Not only do we want to establish a legislative program but also the necessary measures to reflect the bilingual aspect of Manitoba.

To that end Mr. Chairman, we shall avail ourselves fully of the programs and federal funds which your government has recently put at the disposal of the provinces. I might also add that the Ontario and New Brunswick programs in the realm of languages rights will guide us in our efforts to secure national unity. I would also like to tell the Quebec Prime Minister that we will no doubt call upon his province and use al the resources his government will put at our disposal, as Quebec has always done in the past.

This is one of the areas Mr. Chairman, where goodwill can go a long way to promote national unity and my government fully intends to discharge its responsibilities in that field.

SASKATCHEWAN—SECTION 8

EXTRACTED FROM DOCUMENT 58 SCHOOL ACT

Language to be Used

Section 209. “(1) Except as may be otherwise provided in this Act, English shall be the language of instruction in all schools. 1967, c.35, s.11.

“(2) Subject to the regulations of the department, where the board of a district passes a resolution to that effect French may be taught or used as the language of instruction for a period of one hour or for periods aggregating not more than one hour in a day as part of the school curriculum”. 1967, c.35, s.11.

“(2A) Notwithstanding subsection (2), the Lieutenant Governor in Council may designate schools in which French may be taught or used as the language of instruction for such period in a day as he may by regulation provide”. 1968, c.66, s.14.

(3) Where the French Language is being taught under subsection (2), any pupils in the schools who do not desire to receive such instruction shall be profitably employed in other school work while such instruction is being given. R.S.S. 1953, c.169, s.203.

[Page 114]

Religious Instruction

Section 210. “(1) Religious instruction as authorized by the board of a school district may be given in a school of that district for a period not exceeding one-half hour in any teaching day and where the board passes a resolution to that effect the instruction may be given in a language other than English”. 1967, c.35, s.12.

(2) It shall, however, be permissible for the board of any district to direct that the school be opened by the reading or reciting, without comments or explanation, of the Lord’s prayer or a passage selected rom Bible readings prescribed for the purpose by the minister, or both. R.S.S. 1953, c.169, s.204.

EXTRACTED FROM DOCUMENT 81(2)—RELATED PROPOSITIONS

7.2.10 The linguistic rights provided in the B.N.A. Act shall continue to be guaranteed as at present, and the matter of education in French or English and the use thereof shall remain with the provinces so that the provinces may proceed with the development of bilingual programs as is being done in most provinces.

7.2.11 That a Bill of Rights guaranteeing fundamental democratic rights be made part of the constitution.

ALBERTA—SECTION 9

EXTRACTED FROM DOCUMENT 209

A Position Paper Prepared for the Federal-Provincial Constitutional Conference, December, 1969 by the Hon. Harry E. Strom.—(pp. 11-14).

4. ALBERTA’S POSITION ON REPORTS OF SUB-COMMITTEES

Fundamental Rights and Judicial Review

The Province of Alberta, in co-operation with the Provinces of British Colmbia, Saskatchewan and Manitoba, commissioned a paper entitled A Preliminary Study of the Entrenchment of Fundamental Rights and Judicial Review. The paper, by Douglas Schmeiser summarizes Alberta’s position on the question of entrenchment of fundamental rights and judicial review. In his paper, Schmeiser examines the difficulties in the use of judicial review, and describes many of those difficulties.

There is the need for further consideration, in our view, on the question of entrenchment in the Constitution of fundamental rights. In our view, the whole question is premature. The Conference must first agree upon an

[Page 115]

acceptable formula for amending the Constitution. The matter of entrenchment, whether of political rights or anything else, and the amending procedure, are closely iterrelated [sic].

But even when the question of an amending procedure is settled, our view is that there are serious problems arising from entrenchment. The concept carries with it the consequence of surrendering by Parliament in its sphere, and the Provinces in their sphere, the power to enact repeal rights that are entrenched. A concomitant circumstance would be a judicial review by the courts of entrenched rights, which again has obvious consequences which could well be unfortunate.

In our view, judicial review is a most undemocratic procedure, since it gives the court power to substitute their opinions for those of the electorate. Canada has always operated under the principles of responsible government, and the sovereignty of the people as expressed through their legislators who are accountable to the people. Judicial review would subject the opinion of the legislation and the operation of self-government to the opinion of the courts. In our view, this would be an undesirable development.

The Schmeiser Paper concludes by arguing that Canadian society ought to develop its own creative methods for dealing with fundamental rights. We should keep Parliament supreme and we can probably achieve more without judicial review than we could with it.

If Canadians constitutionally entrenched fundamental rights, we would be rejecting a system which works reasonably well in Canada, although it does require improvement, in favour of a system that is working badly in the United States.

In our view, we should examine alternative ways of protecting fundamental rights, including the ordinary statutory form at the Federal and Provincial level.

On Languages

Our position on the language question remains essentially the same as stated at the last Conference.

We have taken steps in Alberta to accommodate people of French origin of language and have made provision for French to be the language of instruction in disciplines like social studies or science in the lower grades and the language of instruction 50 per cent of the class day in other grades. This half

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time instruction in French is now occurring in over 25 schools in the Province. Where French translations are available for a particular course, the French preference books and materials may be used.

We have ad hoc committees of bilingual persons working to develop courses in the French language arts. This applies to areas where there is a need and an interest.

Alberta’s cultural heritage is a mosaic of many ethnic groups all contributing to the richness of our Province. We are particularly conscious of legitimate rights and aspirations of the first citizens of our Province, the Indians.

We will continue to provide opportunity for all groups to develop culturally and economically.

EXTRACTED FROM DOCUMENT 58

EXTRACT FROM BILL 34 “AN ACT TO AMEND THE SCHOOL ACT”—PROVINCE OF ALBERTA

Assented to April 3, 1968

Section 23. Section 386 is amended by striking out subsection (1) and by substituting the following:

386. (1) Notwithstanding section 385, the board of a district or division may by resolution in addition to the English language, in its school or schools in Grades I to XII inclusive but in that case:

(a) in Grade I and II, at least one hour each day shall be devoted to instruction in English,

(b) in Grades above II the total period of time in which French is used as language of instruction shall not exceed 50 per cent of the total period of time devoted to classroom instruction each day, and

(c) the board and all schools of a district or division using French as a language of instruction pursuant to clause (b) of this subsection shall comply with any regulations that the Lieutenant Governor in Council may make governing the organization and application of the use of French as a language of instruction.

[Page 117]

EXTRACTED FROM DOCUMENT 81(2) —

RELATED PROPOSITIONS

The following propositions 8.1.1 to 8.11.11 were presented by the Government of Alberta on November 1, 1968.

8.1.3. The embodiment of so-called “language rights” into the Canadian Constitution, or Bill of Rights, will not produce the desired results which in the last analysis, will depend primarily on the attitudes and responses of the Canadian people as a whole.

It is the firm belief of the Government of Alberta that the proposed legalistic approach to alleged language rights will engender resentment and oppositions that will retard the voluntary acceptance of bilingualism for its own intrinsic value and have a divisive, rather than unifying, effect on Canadian nationhood.

8.1.4. The Government of Canada has proposed in its document: “A Canadian Charter of Human Rights”, a constitutional Bill of Rights in which would be entrenched linguistic rights and language guarantees as defined and recommended by the Royal Commission on Bilingualism and Biculturalism. The proposal of the Government of Canada is unacceptable because:

(a) The enactment of such a Bill of Rights would necessitate fundamental revisions of Section 93 and Section 133 of the British North America Act, 1867, revisions which cannot be carried out unilaterally by Parliament by reason of the restrictions imposed by Section 91, Head 1 of the British North America Act, 1967, as amended;

(b) It is unrealistic to anticipate that the unanimity of agreement necessary to implement the federal proposal for the entrenchment of a Bill of Rights can be attained in the near future; witness the rejection of the Fulton-Favreau formula involving issues much less controversial than the constitutional changes proposed in the recommendations of the Royal Commission on Bilingualism and Biculturalism.

(c) The proposed constitutional Bill of Rights is a legalistic approach, which would produce the undesirable consequences stated in Proposition 3.

8.2.5 The implementation of the recommendations of the Royal Commission on Bilingualism and Biculturalism, that is to say:

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(1) that English and French be formally declared the official languages of the Parliament of Canada, of the federal courts and of the Federal Government;

(2) that the provinces of New Brunswick and Ontario declare that those provinces recognize English and French as official languages;

(3) that any province (other than Ontario and New Brunswick) whose French-language minority reaches or exceeds ten per cent should recognize French and English as official languages;

(4) that bilingual districts be established throughout Canada in areas where French-speaking citizens represent ten per cent or more of the local population;

is objectionable and unacceptable for the reasons indicated in Proposition 4 above.

It is unacceptable also because, by giving the French language an official status equal with English, bilingualism will become a requisite to promotion within the public service and armed services of Canada. This will have the effect of penalizing the non-bilingual majority of Canadian citizens who would be required to learn a second, and in the case of many, a third language, before being eligible to hold a responsible position in the public service and armed forces of their country even though they already are fluent in the working langue of the majority of Canadian citizens.

8.2.6. The proposed constitutional amendments will not have a favourable effect on public attitudes and responses in regions other than those whose people are predominantly French-Canadian. The course proposed understandably will not be acceptable to the one-third of Canadian citizens whose mother tongue is neither English nor French but who, in various Canadian communities, represent a local majority equal to or greater than the ten per cent proposed by the Royal Commission on Bilingualism and Biculturalism to qualify for recognition as an English-French bilingual district.

8.2.7 What is required to provide the real essence of true oneness and unity between French-speaking and English-speaking Canadians is a voluntary appreciation of the language and culture of the one-third of Canada’s citizens of French origin, not on the basis of constitutional rights but because of the practical value and enjoyment of being able to converse fluently in at least the two languages which are the mother tongues of the vast majority of all Canadians. The efforts of the federal and provincial governments

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should be directed, therefore, to the encouragement of such voluntary appreciation.

8.3.8 The Government of Alberta challenges the assumption that the constitutional or legalistic approach is the only approach or the best approach to the problem at hand.

Alberta holds that the results desired will be more readily and extensively obtained by efforts designed to stimulate and encourage English-French bilingualism on the basis of its intrinsic value and its cultural enrichment to individual citizens and to Canadian society at both community and national levels.

To this end, the Government of Alberta has extended educational opportunities in the French language, not on the basis of a constitutional right nor confined to isolated bilingual districts as proposed by the Royal Commission on Bilingualism and Biculturalism but, generally, throughout the province on the basis that individual students who desire to enrich their lives by becoming fluent in Canada’s major languages will have the opportunity and encouragement to do so.

8.3.9 Matters of language, culture, religion and politics are matters of individual heritage and personal decision and are not matters which properly should be given some special constitutional status beyond what was mutually agreed to as a condition of federal union.

BRITISH COLUMBIA—SECTION 10

EXTRACTED FROM DOCUMENT 81(2)—RELATED PROPOSITIONS

9.3.7. The Constitution is not the means to develop cultural and linguistic diversity and should not contain any language guarantees beyond those now contained in Section 133 of the B.N.A. Act.

EXPLANATION:

“British Columbia recognizes that the English and French cultures and languages are the predominant ones in Canadian society today, and every effort should be made to encourage, cultivate, and foster them—not from the point of view that Confederation consisted of a Union of two founding races or cultures, because British Columbia does not believe history supports that view, but rather because of their intrinsic worth and the benefits to nationhood to be gained by doing so. Having said that, we also recognize that there are six million Canadians whose ethnic origin is neither English nor French. We do not intend to see these people made second-class citizens by constitutional means.

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The question, then, is: What are the best means to foster and develop those ethnic and cultural diversities with which Canada is blessed, the cold legal language of a Constitution would not, in British Columbia’s opinion, be the means at all. In point of fact, the Constitution has little effect on how people live in so far as language and culture are concerned. Our linguistic and cultural attitudes are tempered not by legal considerations embodied in a Constitution, but in the final analysis reflect the personal habits, attitudes, and practical necessities of the population of the nation. It is when individuals, encouraged by their governments, come to realize the worth of another language and culture on their own merits—it is in that climate that culture and language will flourish and Canada’s heritage will be enriched.”

“Canada is a large country with major centres of one language and culture or another. The sparsity of French-speaking Canadians in many parts of Canada makes it inappropriate for a Constitution to require equality of language and culture rights in every corner of the Nation. The Commission on Bilingualism and Biculturalism appreciated this fact, and the action the Commission recommended in the first report was not, for the most part to take the form of constitutional amendment, but rather was to take the form of legislative action in those particular jurisdictions in which the number of French- speaking Canadians made action appropriate. In British Columbia there are fewer citizens per capita whose mother tongue is French now than there were when British Columbia entered Confederation in 1871.”

SUBJECT: FUNDAMENTAL RIGHTS

9.4.8. British Columbia would not support a Bill of Rights which would entrench linguistic rights until the implications of so doing are whether it would support entrenchment of political, legal, egalitarian and economic rights until the implications of so doing are fully considered.

EXPLANATION

“For the reasons contained under Proposition No. 7, British Columbia would not support a Bill of Rights which would entrench linguistic rights. Moreover, linguistic rights are not the kind of natural rights which traditionally have been the subject of constitutional protection in those jurisdictions that have enacted Bills of Rights.

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As far as fundamental rights are concerned, British Columbia is firmly committed to the proposition of the fair and impartial treatment under law of all its citizens and the citizens of Canada. In that sense we completely sup- port the expression in law of a person’s fundamental rights. The question is: Can the best be insured by an entrenched Bill of Rights as is suggested? Before that question can properly be answered, we must have the fullest discussion on the implications of entrenchment.

The first implication of an entrenched Bill of Rights is that it amounts to a restriction on the principle of legislative supremacy, which has been the underlying philosophy of our parliamentary system. Are we now in a position in Canada to depart from the principle of parliamentary supremacy which has guided us so well in our first one hundred years? Moreover, such a restriction on legislative supremacy would to a greater extent be at the expense of Provincial jurisdictions rather than the Federal jurisdiction, for it is the Provincial Legislatures that have legislative competence over property and civil rights within a province.

There are more significant ways to effectively ensure that our laws do not offend basic human rights and are kept up to date and in keeping with our ideals of justice and freedom.”

GENERAL SOURCES—SECTION II

Extracted from Document 75

Briefing Paper on Discussions of the Continuing Committee of Officials (pp. 25-42).

VI—OFFICIAL LANGUAGES

At the end of its February meeting the Constitutional Conference issued a consensus on language rights (copy in Appendix) recognizing “that French-speaking Canadians outside Quebec should have the same rights as English-speaking Canadians in Quebec” and affirming “the desirability of proceeding by governmental action as speedily as possible in ways most appropriate in each province”. The consensus also provided for the establishment of a special committee

“to examine the Report of the Royal Commission on Bilingualism and Biculturalism and the views expressed at this Conference on the Report, and on other

[Page 122]

matters relating to language rights and their effective provision in practice, and to consult on methods of implementation, including the nature of possible federal assistance, and on the form and the method of constitutional amendment”.

As indicated in its Report, the Continuing Committee established at its first meeting a sub-committee on official languages to under- take the special tasks which the Conference had agreed should be carried out.

This section of the Secretariat’s briefing paper attempts to summarize the discussions both in the Continuing Committee and in its Sub-Committee on matters relating to official languages. These discussions were based on the recommendations contained in the first report of the Royal Commission on Bilingualism and Biculturalism (copy of the recommendations in Appendix), on the relevant propositions submitted by governments, and on views related to other aspects of this subject.

Main Points Arising out of Discussions

1. Implementation of the consensus of February, 1968—

An important part of the discussions to date relates to the implementation of the two major conclusions of the consensus of February 1968, namely:

that French-speaking Canadians outside Quebec should have the same rights as English-speaking Canadians in Quebec; and

that governmental action be proceeded with as speedily as possible in ways most appropriate in each province.

The following are the main points arising out of that discussion:

(a) Various views were expressed relating to the implementation of the conclusions of the consensus. One view was that these conclusions implied that there should be formal recognition of English and French as the official languages of Canada, either through specific constitutional provision or as part of an entrenched bill of rights, or by statute. A contrasting view was that it would not be wise to give formal recognition of official languages through constitutional or statutory provisions but that the goals expressed in the consensus would best be achieved through voluntary measures.

[Page 123]

(b) In discussing the possibility that formal legislative action might be taken to recognize official languages the following concerns were expressed:

There was a view that federal legislation having the effect of requiring an extension in the use of English or French, even for strictly federal purposes, would in effect be tantamount to a unilateral amendment of the British North America Act.

Another point of view stressed that it was important not to attempt to force progress too quickly through legislative action since this could cause adverse reaction when there was now a healthy interest in proceeding toward the goals expressed in the February consensus. In addition, overly precipitous action could lead to serious administrative difficulties.

(c) It was observed that the Government of Canada had introduced a Bill on Official languages which, if approved by Parliament, will among other things have the effect of making English and French the official languages of the Parliament of Canada, of the Federal Courts, of the Federal Government and of the federal administration. It was explained that, this action reflected the desire of the Federal Government to proceed quickly with the implementation of the recommendations of the Royal Commission on Bilingualism and Biculturalism. It was the view of the Federal Government that the enactment of this Bill into law would not in any way affect or modify the permission conferred or the obligation imposed by Section 133 of the British North America Act. (As noted in sub-paragraph (b) above certain provinces expressed an opposite view.)

(d) With reference to the recommendation that New Brunswick and Ontario become officially bilingual provinces, the Commit- tee’s attention was drawn to the following main points:

In March 1968, the Legislative Assembly of New Brunswick had approved a resolution which declared the principle that English and French are the official languages of New Brunswick; reaffirming that both languages have full rights of usage in all the proceedings of the Assembly; agreeing that steps be taken to provide for records of the Assembly, public statutes and other public docu-

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ments to be printed in both languages; and agreeing that the Government introduce with appropriate speed such legislation as may be required to establish in New Brunswick the language regime appropriate to an officially bilingual province. As had been stated in the February Conference by the Head of the Ontario Government, four task forces had been formed to report on bilingualism with respect to 1) municipal administration; 2) the administration of justice; 3) the provincial public service; and 4) the Legislature and the provincial statutes. It was observed that in July the Legislative Assembly passed unanimously a resolution allowing members to address the House as a matter of right in either of the two official languages of Canada. Furthermore legislation had been enacted in July authorizing the maintenance and establishment of elementary and secondary schools or classes for the purpose of providing French as the language of instruction for French-speaking pupils. The Government of Ontario was also expanding its translation ser- vice and has developed a language training programme for public servants.

(e) With reference to the recommendation that in the provinces other than Quebec, New Brunswick and Ontario, both English and French may be used in the debates in legislatures and that appropriate services in French be provided for their French-speaking minorities, it was noted that the following steps have been taken:

The use of the English and French languages had been authorized in the Legislative Assemblies of Newfoundland, Prince Edward Island and Nova Scotia.

Legislative measures or administrative decisions to increase the use of French as a language of instruction in schools had been taken in the provinces of Newfoundland, Prince Edward Island, Nova Scotia, Manitoba, Saskatchewan, Alberta and British Columbia.

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2. Intergovernmental assistance for implementation

Among the questions specified for study in the February consensus was the matter of the effective provision in practice of language rights including the nature of possible intergovernmental assistance. The main points which arose during examination of this question were as follows:

(a) It was pointed out that one province had indicated its desire to proceed as quickly as possible with the establishment of full and effective recognition of two official languages, and other provinces had also indicated their intention of taking various steps to increase the use of the French language in the provision of public services including school instruction. It was observed, further, that effective implementation of appropriate measures would be costly, and that federal assistance would be necessary, at least for certain provinces, so that they could proceed quickly. Some delegations emphasized the importance of early assurance from the Federal Government that substantial assistance would be forthcoming.

(b) Discussions concerning the nature of federal assistance which might be given revealed the difficulty in defining such assistance in general terms. It was observed that requirements and programmes could vary widely from province to province. Those provinces envisaging programmes which would warrant federal assistance were invited to develop proposals with cost estimates; these could be considered on a bilateral basis between the Federal Government and each of the provinces concerned. (In this connection, it was noted that the Sub-Committee on Official Languages was not a body to evaluate the merits of individual provincial proposals, although discussions within the Sub-Committee would assist provinces in developing proposals.) As a general principle, it was suggested that it would be preferable for the federal assistance to relate to initial implementation costs, rather than to recurring operating expenditures. However, it was noted that what could be considered to be an operational cost in one province could be an initial cost in another province. A question was raised as to whether the residents of one province which for decades had paid for bilingual public services including education in both languages, should be called upon

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the share through federal taxes the cost of bilingualism in other provinces.

(c) It was recognized that another form of assistance which would be important was technical aid in matters such as translation, interpretation, bilingual publication and language instruction. In this connection, it was indicated in the Committee that the provinces of Quebec, Ontario and New Brunswick, as well as the Federal Government, have offered to provide technical assistance.

(d) An important factor which was recognized in the discussion was that, in developing language policies and programmes, governments would have to take into account the limited resources which now exist for effective implementation of a dual language regime. In particular, it was recognized that shortages of trained translators and interpreters for courts and legislatures, and of qualified bilingual teaching staffs could impose limitations on the speed with which governments could proceed. In view of the likelihood that demand would exceed the supply of such skills, at least for a period of some years, it was suggested that provision might be made for consultation to coordinate their use on a Canada-wide basis.

3. Commissioner of Official Languages—One of the specific measures proposed by the Royal Commission on Bilingualism and Biculturalism for the promotion and the protection of the use of both official languages in the provision of public services was that the Federal Government and the bilingual provinces establish Commissioners of Official Languages. During discussions on this matter the following points arose:

(a) One view indicated agreement with the intent of the Royal Commission’s recommendation. It was observed that the Federal Government’s Bill on Official Languages does provide for a Commissioner of Official Languages responsible to Parliament. It was suggested by some that this function could also be carried out as part of the general responsibilities of Ombudsmen.

(b) Another view expressed concern about the lack of coordination that would result if Commissioners of the various jurisdictions acted independently. It was suggested that a permanent federal-provincial Official Languages Commission

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might be set up to ensure a more complete exchange of information; this could lead to more uniform decisions in respect of language rights.

(c) A further point of view was that such steps might not be required and that reliance could be placed on political processes and on recourse to the Courts in order to ensure adequate protection of language rights.

4. Bilingual Districts—In order to make it more feasible for governments to provide public services in French to the majority of French-speaking Canadians outside Quebec and in English to the majority of English-speaking Canadians in Quebec, the Royal Commission on Bilingualism and Biculturalism had recommended that public services be provided in both official languages in areas where the concentration of the minority would warrant such services. Specifically the Royal Commission recommended as a minimum requirement that such districts be established wherever the minority French or English speaking population attained ten percent of the total population in that district. The Committee’s discussions revealed reactions revealed reactions to the bilingual districts concept ranging from full support to outright opposition. The following are the main viewpoints which were expressed:

(a) While it was noted that the Federal Bill on Official Languages did provide for consultation with the provinces, some concern was expressed about the pressures which would be placed upon provinces whenever the Federal Government would unilaterally establish bilingual districts for its purposes. In particular, federal bilingual districts could cause difficulties for provinces which intend to proceed by means other than the establishment of bilingual districts for provincial purposes and for those provinces having minority groups larger than their French-speaking minorities.

(b) Another problem was considered to be that of determining acceptable boundaries for bilingual districts, since there  have been established by each level of government a large number of regions or districts for different purposes, the boundaries of which are rarely coterminous. The problem of defining a new district which could correlate with existing

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regional unit on as logical a basis as possible could be a formidable one.

(c) A view was expressed that since Quebec residents are generally served in both official languages, the establishment of bilingual districts in Quebec could have the effect of reducing the extent to which public services are provided in English to the English-speaking minority outside such districts.

5. Language rights and the Constitution—The February consensus on language rights also directed that in considering possible methods of implementation of language rights, the form and method of constitutional amendment should be examined. In the Committee’s discussions concerning this question, the following main points arose:

(a) Wide differences of views were expressed as to whether language rights should be guaranteed in the Constitution. One view is that there should be formal constitutional recognition of English and French as the official languages of Canada. A contrasting view is that it would be preferable not to attempt to impose the use of one language or the other through compulsory measures. In relation to this discussion, the concepts of language as a matter of right or as a matter of equity were identified. The view seemed to be that if language were to be treated as a matter of right, then it could logically be provided for specifically in the Constitution, perhaps as part of an entrenched Charter of Human Rights. On the other hand, if language were considered to be a matter of equity, it might then be desirable to avoid this formal type of guarantee and to leave it to individual governments to make such provision as seemed to be appropriate in regard to the use of languages within their own jurisdiction.

(b) It was observed that if language were to be taken as a matter of ritht [sic], difficult questions of definition would arise. The point was made that language might be considered to be purely a right of the individual. An elaboration of this, however, was that language rights went beyond the notion of strictly individual rights since languages constitute the means by which the individual relates to society. A further view was that language rights should also be regarded as a collective right applying to a society or group of people.

(c) There was some preliminary discussion concerning the specific question of

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the form and method of constitutional amendment. In this connection, note was taken of the suggested amendments to the British North America Act which had been proposed by the Royal Commission. Some delegations expressed opposition to the Royal Commission recommendation, arguing that the present constitutional provisions are sufficient. Other delegations voiced agreement with the intent of the Royal Commission, while indicating that they had reservations about the precise form and wording of the constitutinal [sic] amendments which had been suggested. A view was also expressed that since it was unlikely that unanimous acceptance of a constitutional amendment enshrining language rights could be obtained at this time, there was little point in speaking of constitutional provision for language rights. The time to discuss this matter would be when means of achieving consittutional [sic] amendment had been agreed upon.

(d) Concern was expressed about the transfer of decision-making authority from the elected legislators to the courts which could result from the entrenchment of language rights. For example, entrenchment could have the effect of placing beyond the authority of Parliament and legislatures such matters as the language of instruction in schools and the provision of government services in either or both official languages.

(e) In general, the question of entrenchment of language rights raised the same kind of problems and considerations associated with the proposal to entrench fundamental rights and freedoms in a Charter of Human Rights. These general issues are summarized in the next section of this paper.

VII—FUNDAMENTAL RIGHTS

Introduction

It might be useful to recall that, under the systematic approach the Continuing Committee has been following, the first reference to fundamental rights took the form of one of the “Objectives of Confederation”:

“To ensure the fullest realization of the basic rights and freedoms of all Canadians”.

Discussions within the Committee suggest that there is likely to be little disagreement with this as a general statement of purpose. It

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is when the means of attaining the objective are considered that differences in view arise.

The second reference to fundamental rights came during the Committee’s discussion of “General Principles of the Constitution”. One view contained in some of the propositions examined during this discussion was that the Constitution should recognize and guarantee the basic rights and freedoms of Canadians. Another view opposed the idea that there should be some form of entrenchment of these rights and freedoms in the Constitution.

The main examination of this subject by the Committee centred on the separate category dealing with fundamental rights (see the classification in the appendix), which grouped all the propositions dealing with this subject in detail. The summary which follows incorporates the two introductory discussions with the more detailed examination, and attempts to describe the main points which arose.

The Framework for the Discussion

The Committee’s main discussion on fundamental rights centred to a considerable extent on a proposition from the federal government which suggested in detail the kind of provisions which might be incorporated into an entrenched charter of human rights. There was also a discussion of a number of propositions submitted by several provincial delegations some of which expressed opposite views to those reflected in the federal proposition, and some of which expressed views which were in accord with parts of the federal proposal.

The discussion focused on a grouping of related provisions which emerged from the propositions as possible component parts of a charter of human rights. While views vary widely concerning the advisability of entrenching such provisions, it may make the report on these discussions more meaningful to include a brief summary of these groups below:

1. One group includes what might be described as the traditional rights and freedoms—religion, speech, assembly, press, etc.—and which are now dealt with in certain federal and provincial statutes.
2. A second group is concerned with legal rights, such as the right to a fair trial. The rights considered correspond in general with those already recognized in the Canadian Bill of Rights, certain provincial legislation and some international conventions.
3. A third group contains the egalitarian rights, such as the right to non-discrimination

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in employment. It was suggested that implementation of these would require a good deal of supporting legislation, particularly at the provincial level.

4. Another group is concerned with language rights, and this involves much that is new. The federal delegation noted that in framing its proposals related to these rights it had attempted to follow the recommendations of the Royal Commission on Bilingualism and Biculturalism, although there are some differences in detail. Certain of these proposals are similar to provisions now in the B.N.A. Act which apply to the Government of Canada and the Province of Quebec, but these would be extended to other provinces which become officially bilingual. Other provisions are completely new, such as those applying to government administration and to the language of instruction in schools.
5. Other provisions which were suggested for incorporation in a charter include:

a provision to make clear that an entrenched Charter would be paramount over any federal or provincial legislation which conflicted with it;

a provision expressing the intent that the entrenchment of a Charter should not have the effect of transferring power from one jurisdiction to another; and

a provision that, in cases of national emergency, Parliament could take actions which were in conflict with the Charter.

Main Points Arising Out of Discussion

1. Discussion in the Committee suggested that there are in the several governments a variety of reactions to the idea of entrenching fundamental rights ranging from agreement in principle, to agreement with reservations, to definite opposition. A frequently expressed view was that if entrenchment were to proceed, careful attention to the definition of the rights and freedoms to be guaranteed would first be required. It was suggested that some governments might favour the entrenchment of some, but not all of the rights which had been proposed for inclusion in a charter of human rights. It was noted also that there were different forms of entrenchment which

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might be considered: a general entrenchment which applied to the Constitution of Canada as a whole, entrenchment provisions within the constitutions of the central and the provincial governments, or a combination of both. The other alternative which was put forward was that there should be no constitutional entrenchment at all, but rather a reliance on statutes.

2. Concern was expressed about the extent of impairment of legislative powers which might be implied by an entrenchment of rights, and it was suggested that this could only be assessed by considering in detail the specific rights which were proposed for inclusion in a charter of human rights. Questions were raised, too, about the jurisdictional aspects of administering and enforcing entrenched rights. Views were expressed that positive legislative action by both federal and provincial governments in their own areas of jurisdiction would be required to implement fully the guaranteed rights, and that the effect of entrenchment should not be to transfer power from one jurisdiction to another. It was also observed that an entrenched charter need not invalidate existing legislation relating to rights, unless that legislation contained provisions which were in conflict with the terms of the charter.
3. Because of concern about the possible jurisdictional effects of an entrenchment of rights, the suggestion was made that it might be preferable to settle upon the distribution of powers before finally resolving the matter of entrenchment. An opposing view was that it would be more logical to discuss the distribution of powers after agreement in principle had been reached on those areas which would be placed beyond legislative competence; in this way the rights of individuals could be settled before the rights of governments.
4. The view was expressed that Canada could leave human rights to the judgment of its parliamentarians and legislators, as had been the case over the past 100 years; the federal proposal seemed to imply that the present system of federal and provincial statutes was considered not to be working adequately. A contrasting view was that there had been instances of questionable legislation in the past and an entrenched charter would offer some protection against momentary whims of temporary legislative majorities in future.

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5. It was suggested that the entrenchment of human rights was a fundamental change of greater significance than was perhaps commonly recognized. In effect, certain decisions involving policy questions or interpretations of social values would be taken away from the legislators and put into the hands of the courts. For example, it was observed that provisions dealing with criminal procedure and provisions in legislation like the Lord’s Day Acts or the Indian Act might be affected in this way. The suggestion that it was preferable that such choices should be made by the courts rather than by the elected legislaors [sic] was questioned. It was observed further that experience in other countries suggests that entrenchment may lead to an enormous amount of frivolous litigation, and sometimes to criticism of the judiciary when the value judgments of he judges become involved in the resolution of social questions. Another view was that while entrenchment would imply some departure from the principle of the supremacy of Parliament, the extent of the transfer of decision-making to the courts might well be more limited than was thought in some quarters. In effect, many of the value julgments [sic] would be made in the process of writing a Charter, and the choice left to the Courts might be quite marginal in nature. Court decisions would always be made within the contact of the constitutional provisions and precedents.
6. It was urged that care must be taken to ensure that certain freedoms are not guaranteed to the extent that they can be used to violate other freedoms. For example, freedom of speech should not extend to the point that defamation of character cannot be prevented; criminal proceedings must not be unduly hampered or the right to protection by the law may be weakened.
7. In addition to the classes of rights suggested in the federal proposition and some provincial propositions for entrenchment in the Constitution, mention was also made in the Committee of “economic and social rights”. Such rights might be considered to include the right to work, the right to just conditions of employment, the right to an adequate standard of living, the right to social security, the right to education, and the right to rest and leisure. It seems to be generally accepted that it would be unrealistic to think of entrenching such rights in a Constitution. Instead, it was thought by some that such rights might be declared as objectives which the country would strive to realize and might find their expression in a preamble to the Constitution.

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8. The observation was made that the proposal to entrench in the Constitution the many rights and freedoms which had been considered during the Committee’s discussions raised a large number of practical and technical prolems [sic] which should be examined in depth. The suggestion was made that a sub-committee should be established for this purpose.

EXTRACTED FROM DOCUMENT 194

A Briefing Paper on Discussions within the Committee of Ministers on Fundamental Rights, (pp. 1-6)

INTRODUCTION

1. The mandate given to the Committee of Ministers on Fundamental Rights by the Constitutional Conference of February 1969 was,

“to study all matters relating to fundamental rights, including the question of entrenchment of such rights in a constitutional charter.”

In its first two meetings the Committee has discussed the principle of entrenchment and has examined the fundamental political rights and certain legal rights, their nature and the implications of their entrenchment. Other categories of rights, notably egalitarian and economic and social rights, will be discussed at future meetings.

2. The Committee’s discussions have centred around a proposition from the Federal Government which suggested in detail the kind of provision which might be incorporated into an entrenched charter of human rights. Propositions from most provincial governments also have been considered. In addition two special studies, analyzing the implications of entrenchment and the experience of other countries with entrenched rights, were carried out under the auspices of some of the delegations and have been examined by the Committee. (1)
3. All members of the Committee are in accord with the underlying objective of protecting the rights of Canadian citizens. The

———

• It should be recalled that prior to the convening of this Committee of Ministers the subject of fundamental rights was discussed in the Continuing Committee of Officials. The substance of these deliberations was reported to First Ministers in February 1969.

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differences in view arise with respect to the best method of achieving the objective. Three basic approaches have been put forward:

(1) Entrenchment of a charter of Rights in the Constitution of Canada.

(2) The entrenchment of a limited number of basic rights and the protection of other rights by federal and provincial legislation in keeping with the distribution of powers.

(3) The continuation of the system of protecting rights by federal and provincial statutes.

There was also discussion as to the substance of the rights which could be entrenched or otherwise protected.

The Principle of Entrenchment

4. The examination of specific categories of rights was preceded by a discussion of the principle of entrenching fundamental rights. Reactions varied from acceptance in principle through acceptance with reservations to definite opposition.
5. Delegations favouring the principle of entrenchment expressed the view that the rights of individuals should have precedence over the rights of government. In their view a revised constitution which did not articulate basic values and right would not meet the expectations of the Canadian people. The declaration of these rights would give them greater clarity and ensure their protection. The entrenched rights would form a base on which implementing legislation would be enacted by each order of government within its areas of jurisdiction. Entrenchment would protect these rights from injudicious legislation by any order of government. By establishing a uniform standard it could also contribute to national unity and would have educational and symbolic effects exceeding those of ordinary statutes.
6. Other delegations accepted the principle of entrenchment for some rights but expressed the following reservations:

the effect of entrenchment must not be to transfer jurisdiction from one level of government to another;

it is difficult to discuss entrenchment without knowing the division of powers and which level of government could legislate to protect certain rights;

the impact of entrenching secific [sic] rights could not be assessed in the absence of a

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formula for amending the constitution which could be applicable to these rights;

there is a need to know what limitations would be defined for certain rights;

there is a need to know which courts would have jurisdiction in matters involving fundamental rights.

With respect to the questions of the division of powers and the amending formula, it was the view of several delegations that work in these areas should be carried on concurrently with the study of fundamental rights.

7. Those rejecting the principle of entrenchment suggested that the concept is alien to the principle of the supremacy of Parliament. They argued that in the parliamentary system the rights of the people are in their own hands and it is their elected representatives in the legislatures who have the prime responsibility for the protection of their rights. The effect of entrenchment would be to transfer the burden of this responsibility to the courts. It was also suggested that entrenchment would freeze rights at a fixed point, decreasing flexibility and making it difficult to adapt to changing conditions. In their view the Canadian system has worked well without entrenchment, and it has not been proven to their satisfaction that the citizens in countries with entrenched rights have greater freedom than those in countries without entrenched rights.
8. There was considerable discussion of the effect of judicial review which would result from placing rights in the Constitution. It was put forward that the entrenchment of rights would have the effect of transferring policy decision-making with respect to fundamental rights out of the hands of the legislators and into the courts, where judges could impose their personal values and where they would be expected to rule on complex social issues without adequate investigative tools at their disposal. The American process of judicial review would be substituted for the present Canadian system. There would be a marked increase in frivolous and time-consuming litigation and perhaps some loss of Canadian identity through the use of American legal and political precedents. In reply it was suggested that the American experience with its Bill of Rights did not have a direct application in Canada because of the important differences in the two political systems. In particular, mention was made of the differences in responsibility in regard to the criminal law and residual powers. Moreover, it was pointed

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out that judicial review has always existed in Canada with respect to the rights now in the B.N.A. Act. Consequently, the entrenchment of certain additional rights would not of itself be conferring a new function on the courts.

9. Some alternatives to the entrenchment of fundamental rights were suggested. They included the creation of human rights com- missions, the nomination of ombudsmen and the establishment of permanent law reform commissions.

Political Rights

10. This category of fundamental political rights was viewed as including:

freedom of conscience and religion;

freedom of expression (including the

freedom of speech and of the press);

freedom of assembly and association, and the right to freely held elections at maximum intervals.

11. There was unanimous support for the entrenchment of the right to freely held elections at maximum intervals of five years at both the federal and provincial levels. Some delegations felt that the entrenchment of this right was sufficient to protect the exercise of the other political freedoms without their being entrenched. The effect of this agreement would be to extend the provision in the B.N.A. Act covering Ontario, Quebec and the Federal Government to include the other provinces. There was also support for the idea that this provision should not interfere with the power of Parliament and the legislatures to re-adjust representation.
12. Discussions also show that the majority of delegations are prepared to support the entrenchment of the other three fundamental political rights listed above. In some cases this support is dependent upon the development of appropriate constitutional provisions and the satisfactory development of other elements of the constitution, especially the amending formula and the division of powers.
13. One view put forward was that these political rights are so basic that Canadians take them for granted. Stating them in the Constitution would make them visible and help to clarify their meaning. Entrenchment

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would affect both private and public actions and would protect minorities against the temporary will of the majority. Moreover, in cases brought to the courts, there would be a review of the scope of the right as well as a ruling with respect to which order of government has legislative jurisdiction.

14. The view was also expressed that the exercise of one man’s rights must not have the effect of violating another man’s rights. Consequently, these rights carry some implied restrictions. It is necessary to understand both the substance and limits of these rights. In defining these rights in the constitution some delegations felt a simple, general declaration would be sufficient, while others favoured an indication of the limits “by authority of law” as is the case in the international charters of rights.
15. Some reservations were expressed with regard to the effect on the distribution of powers of entrenching these political rights. One reservation was that entrenchment should not become an indirect way of modifying the division of powers. Another was that the jurisdictional aspects of the administration and enforcement of entrenched rights would need to be considered.
16. While a number of delegations were prepared to support the principle of entrenching these political rights, they did not feel that a commitment was possible in the absence of an amending formula. The flexibility of the amending formula would determine the ease with which change could be effected, and so reflect the degree to which the responsibility for protecting fundamental rights would be transferred from the legislatures to the courts.
17. Delegations rejecting the principle of entrenchment suggested that, on the basis of experience in other countries, the entrenchment of the three political rights would be of no great practical value. In particular, they argued that the history of the American Bill of Rights shows that entrenchment is not a panacea to problems of human rights.
18. The Committee agreed that the next phase of its work would involve a more detailed definition of the substance and limits of these political rights. Such definitions would be articulated with a view to their pos-

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sible inclusion in the Constitution, should a decision to entrench these rights be made. A sub-committee has been established to carry out preparatory work in this regard, to explore whether these rights should be expressed in general terms or should include a statement of some limitations on their exercise, and to draft definitions.

Legal Rights

19. The Committee then discussed the category of legal rights. The attached list of legal rights was put before the Committee. It was pointed out that they are largely taken from the Canadian Bill of Rights and include both rights of principle and procedural rights. Discussions centred largely on the need for entrenching this category of rights rather than on the substance of any particular legal right.
20. It was put forward that the entrenchment of legal rights would be a concrete means of ensuring equality before the law for all Canadian citizens. However, discussions showed that a majority of delegations did not favour the entrenchment of legal rights. In their view, the common law tradition provided a desirable element of flexibility which could be lost if these rights were entrenched. The Criminal Code and relevant provincial statutes were held to provide adequate protection for Canadian citizens. Consequently, if it can be shown where Canadians do not now have equal protection before the law, statutory changes should be considered in the immediate future.
21. Delegations rejecting the principle of entrenchment suggested it would affect the exercise of discretion by the courts and would change the whole construction of the judicial process. Fear was expressed that entrenchment would result in the importation of the weaknesses which were regarded as inherent in the American system of judicial review. There might also be the danger of constitutional objections being raised as a delaying tactic in cases brought before the courts.
22. The Committee agreed that it was important to have a clearer understanding of such terms as “the law of the land”, “the principles of fundamental justice” and “due process”. The previously mentioned sub-committee has been asked to study the meaning and implications of due process, both substantive and procedural. In addition, the sub-committee will explore the alternatives of wheth-

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er certain legal rights should be entrenched or protected by both federal and provincial legislation. The subcommittee will have the task of considering which legal rights could be handled, one way or the other, and of exploring their substance and limits.

Document 180

COMMITTEE OF MINISTERS ON FUNDAMENTAL RIGHTS

Meeting No. 2

November 3-4, 1969

Progress Report to the Constitutional Conference

The Committee of Ministers on Fundamental Rights held its second meeting on November 3 and 4, 1969. All governments were represented.

The Committee had a further discussion of basic political rights including:

(a) freedom of conscience and religion;

(b) freedom of expression (including freedom of speech and of the press);

(c) freedom of assembly and association.

During this discussion, the Committee examined studies which had been carried out concerning the implications of entrenchment and the experience in other countries with entrenched fundamental rights.

All members of the Committee expressed agreement that these fundamental political rights of Canadians should be protected, although there was question as to the best way by which this could be done. It was suggested by some delegations that certain rights should be entrenched in the Constitution; of those who held that view, some felt that entrenchment should be dependent upon the development of an acceptable formula for amending the Constitution and upon the definition of the substance and limits of these rights. On the other hand, it was suggested by some delegations that these rights could be protected most effectively by their statement in ordinary statutory form.

Some delegations were of the opinion that First Ministers should be made aware of their desire to have the study of an amending formula accorded a priority so that it proceed concurrently with work on other aspects of the constitutional review.

The ministers agreed that there should be additional study of political rights to refine their definitions and that the Committee

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should re-examine alternative ways of protecting these rights.

There was unanimous agreement that the Constitution should provide certain guarantees for freely held elections at maximum intervals of five years at both the federal and provincial levels.

Further discussion of legal rights revealed that the majority of members continue to doubt the advantages of their entrenchment. Following examination of alternatives, the Committee agreed to study and explore the question of whether certain of these rights should be dealt with by entrenchment or by federal and provincial legislation.

The Committee also discussed the question of whether or not a due process provision should be incorporated into the Constitution. The Committee agreed to study the effects of due process clauses, distinguishing between substantive and procedural due process.

The Committee of Ministers agreed to establish a Sub-Committee to give detailed study to the questions identified above concerning political rights, legal rights and due process.

The Committee of Ministers agreed to request further direction from the Constitutional Conference. It agreed also that, subject to such direction, it would meet again in the spring of 1970 to consider reports from the Sub-Committee, and to examine other rights, including egalitarian, social and economic rights.

John N. Turner,

Chairman

Document 62

III SUMMARY OF RECOMMENDATIONS BY THE ROYAL COMMISSION ON BILINGUALISM AND BICULTURALISM

1. English and French shall be formally declared the official languages at the federal level.
2. “New Brunswick and Ontario shall declare English and French to be the official languages in these provinces”
3. English and French shall be declared official languages in provinces where the minority language reaches 10 per cent.
4. In provinces other than Ontario, Quebec and New Brunswick, English and French may be used in the legislature and appropriate services may be provided in French to the French speaking minorities.

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5, 6, and 7. Bilingual districts shall be established throughout Canada for federal and provincial purposes.

8. Obstacles to the use of English and French in local government shall be removed.
9. In the federal capital area, English and French shall have full equality of status and be used in all public services.
10. Canadian parents shall possess the right to have their children educated in the official language of their choice, the degree of implementation to depend on the concentration of the minority population.
11. Section 93A be added to the B.N.A. Act:

“Every province shall establish and maintain elementary and secondary schools in which English is the sole or main language of instruction, and elementary and secondary schools in which French is the sole or main language of instruction, in bilingual districts and other appropriate areas under conditions to be determined by provincial law; but nothing in this section shall be deemed to prohibit schools in which English and French have equal importance as languages of instruction, or schools in which instruction may be given in some other language.”

12. A new version of section 133 of the B.N.A. Act be adopted providing for English and French to be the official languages of Canada and for both languages to be used in all public services wherever certain criteria are met.

13 and 14. Official languages Acts shall be adopted by the Federal government and by the officially bilingual provinces.

(Summary wording by the Secretariat)

Document 182

COMMITTEE OF MINISTERS ON OFFICIAL LANGUAGES

Meeting No. 2

November 6, 1969

PROGRESS REPORT TO THE CONSTITUTIONAL CONFERENCE

The Committee of Ministers on Official Languages met on November 6, 1969. All governments were represented.

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The Chairman made a statement outlining the Federal Government’s proposal for financial and technical co-operation in implementing the recommendations contained in Book II of the Report of the Royal Commission on Bilingualism and Biculturalism. The meeting was informed that these proposals were to be announced in Parliament that day.

Some delegations expressed regret that the proposal was released before an opportunity for full discussion in the Committee. The Committee was assured, however, that the purpose of the federal proposal was to establish a basis for discussion with provincial governments.

Some delegations welcomed the federal proposal while other delegations expressed the view that the federal proposals should not involve the Federal Government in matters of provincial jurisdiction. In particular, one province clearly rejected the principle under- lying the federal proposals. Other provinces felt that such proposals required further explanation and interpretation before they could decide whether they were acceptable. It was agreed that there should be further discussion as soon as possible between the federal and provincial governments in regard to the federal proposals. It was also agreed that, if substantial progress was made in these consultations, the Sub-Committee should meet on the day following the conclusion of the Constitutional Conference, or otherwise as soon thereafter as desirable, to have a progress report on these negotiations and a further examination of the question.

The Ministers received the report of the Sub-Committee on Official Languages on the recommendations of the Royal Commission on Bilingualism and Biculturalism.

The Ministers considered the request of the Sub-Committee on Official Languages for guidance concerning its work priorities and agreed that the Sub-Committee should concentrate for the time being on financial and technical assistance while maintaining the constitutional aspects of linguistic rights on the agenda.

The Committee expects to meet early in 1970 to continue its examination of matters within its terms of reference subject to any special guidance the Committee might receive from the Constitutional Conference.

Gérard Pelletier,

Chairman.

Queen’s Printer for Canada, Ottawa, 1970

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