Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 43 (22 January 1981)


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Date: 1981-01-22
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 43 (22 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 43

Thursday, January 22, 1981

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.


Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of the House of Commons on the

Constitution of Canada


RESPECTING:

The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980


APPEARING:

The Honourable Robert P. Kaplan,
Acting Minister of Justice

WITNESSES:

First Session of the
Thirty-second Parliament, 1980-81


SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Austin
Cottreau
Hays
Lapointe
Lucier
Muir
Petten
Rousseau
Tremblay
Yuzyk—10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss)(South West Nova)
Corbin
Epp
Fraser
Gringas
Hawkes
Irwin
Ittinuar
Joyal
Lapierre
Mackasey
McGrath
Nystrom—15

(Quorum 12)

Richard Pregent
Paul Belisle

Joint Clerks of the Committee

Pursuant to S.O. 65( 4)(b) of the House of Commons:

Mr. Rose replaced Mr. Ogle;
Mr. Beatty replaced Mr. Fraser;
Mr. Fretz replaced Mr. Beatty;
Mr. Robinson (Burnaby) replaced Mr. Rose;
Mr. Beatty replaced Mr. Fretz;
Mr. Gingras replaced Mr. Gimalel;
Mr. Tousignant replaced Mr. Gingras;
Mr. Munro (Esquimalt-Saanich) replaced Mr. Beatty;
Mr. Kushner replaced Mr. Crombie;
Mr. McCuish replaced Mr. Munro (Esquimalt-Saanich);
Mr. MacBain replaced Mr. Mackasey;
Mr. Mackasey replaced Mr. MacBain;
Mr. Beatty replaced M. Kushner;
Mr. Fraser replaced Mr. McCuish.

[Page 3]

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

Senator Nurgitz replaced Senator Tremblay;
Senator Cottreau replaced Senator Wood;
Senator Lapointe replaced Senator Goldenberg;
Senator Muir replaced Senator Asselin;
Senator Tremblay replaced Senator Nurgitz;
Senator Yuzyk replaced Senator Roblin.


[Page 4]

MINUTES OF PROCEEDINGS

THURSDAY, JANUARY 22, 1981
(76)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:52 o’clock a.m., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Cottreau, Goldenberg, Hays, Lucier, Nurgitz, Petten, Roblin, Rousseau and Tremblay.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fretz, Gingras, Hawkes, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Rose.

In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Appearing: The Honourable Robert P. Kaplan, Acting Minister of Justice.

Witnesses: From the Department of Justice: Mr. Roger Tasse, Q.C., Deputy Minister and Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.

The Committee resumed consideration of the Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No.1.)

The Committee resumed consideration of the motion of Mr. Epp, That clause 1 of the proposed Constitution Act, 1980 be amended by striking out line 1 on page 3 and substituting the following:

“1. Affirming that
(a) the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free individuals and free institutions, and
(b) individuals and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law,

the Canadian Charter of Rights and”

After debate, the question being put on the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators
Asselin
Nurgitz
Roblin

[Page 5]

YEAS:

Crombie
Epp
Fretz
Hawkes
McGrath
Nystrom
Rose—10

NAYS:

The Honourable Senators

Austin
Cottreau
Goldenberg
Lucier
Petten
Rousseau

NAYS:

Messrs.

Bockstael
Campbell (Miss)
(South West Nova)
Corbin
Gimaiel
Irwin
Joyal
Lapierre
Mackasey—14

By unanimous consent, Mr. Robinson (Burnaby) moved,- That Clause I of the proposed Constitution Act, 1980, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

“,and the equal right of males and females to the enjoyment of those rights and freedoms,”

After debate, on motion of Mr. Epp, it was agreed,-That Mr. Robinson’s amendment and Clause 2, as amended, be stood until 3:30 o’clock p.m. this day.

On Clause 2 of the proposed Constitution Act, 1980

Mr. Robinson (Burnaby) moved,-That Clause 2 of the proposed Constitution Act, 1980 be amended by striking out line 7 on page 3 and substituting the following:

“2. Every person has the following fundamen-“

After debate, at 12:07 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(77)

The Special Joint Committee on the Constitution of Canada met this day at 3:39 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Cottreau, Hays, Lapointe, Lucier, Muir, Nurgitz, Petten, Roblin, Rousseau and Tremblay.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Hawkes, Irwin, Joyal, Kushner, Lapierre, Mackasey, McCuish, McGrath, Nystrom, Robinson (Burnaby) and Tousignant.

[Page 6]

In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Appearing: The Honourable Robert P. Kaplan, Acting Minister of Justice.

Witnesses: From the Department of Justice: Mr. Roger Tasse, Q.C., Deputy Minister and Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980, and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No.1.)

The Committee resumed consideration of Clause 1 of the proposed Constitution Act, 1980, as amended. The Committee resumed consideration of the motion of Mr. Robinson (Burnaby),-That Clause 1 as amended of the proposed Constitution Act, 1980 be further amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

“,and the equal right of males and females to the enjoyment of those rights and freedoms,”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 10; NAYS: 12.

Clause I, as amended, carried.

The Committee resumed consideration of Clause 2, of the proposed Constitution Act, 1980.

The Committee resumed consideration of the motion of Mr. Robinson (Burnaby),-That Clause 2 of the proposed Constitution Act, 1980 be amended by striking out line 7 on page 3 and substituting the following:

“2. Every person has the following fundamen-“

The question being put at the amendment, it was negatived on the following division:

YEAS:

Messrs.

Nystrom
Robinson (Burnaby)—2

Nays:

The Honourable Senators

Asselin
Cottreau
Hays
Lapointe
Lucier
Nurgitz
Petten
Roblin

NAYS:

Messrs.

Beatty
Bockstael
Hawkes
Irwin

[Page 7]

Campbell (Miss)(South West Nova)
Corbin
Crombie
Epp
Lapierre
Mackasey
McGrath
Touisgnant—21

By unanimous consent, Mr. Crombie moved,-That Clause 2 of the proposed Constitution Act, 1980 be amended by

(a) striking out the word “and” immediately after paragraph
(b) thereof, and by replacing the period after the word “association” with “; and” and by adding thereto the following paragraph after paragraph (c):
“(d) freedom from unreasonable interference with privacy, family, home, correspondence and enjoyment of property.”
(b) in consequence thereof, striking out line 6 on page 2 of the French version and the heading preceding Clause 2 on page 2 and substituting the following:

“Libertes et protection fondamentales

2. Chacun a les libertes et Ia protection fondamentales”

By unanimous consent, the. amendment was amended, by deleting the words “and enjoyment of property”.

After debate, the question being put on the amendment as amended, it was negatived on the following show of hands: YEAS: 10; NAYS: 14.

Mr. Robinson (Burnaby) moved,-That Clause 2 of the proposed Constitution Act, 1980 be amended by
(a) striking out line II on page 3 and substituting the following:
“and expression;
(c) freedom of the”; and
(b) striking out line 12 on page 3 and substituting the following: “press and other media of communication; and”

After debate, the question being put on part (a) of the amendment, it was negatived on the following show of hands: YEAS: 9; NAYS: 14.

The question being put on part (b) of the amendment, it was agreed to.

Mr. Irwin moved,-That Clause 2, as amended, of the proposed Constitution Act, 1980 be further amended by striking out lines 13 and 14 on page 3 and substituting the following:
“(c) freedom of peaceful assembly, and
(d) freedom of association.”

After debate, the question being put on the amendment, it was agreed to.

By unanimous consent, Mr. Robinson (Burnaby) moved,- That Clause 2, as amended, of the proposed Constitution Act, 1980 be further amended by (a) striking out the word “peaceful” in paragraph (c); and (b) adding to paragraph (d) the following:

“including the freedom to organize and bargain collectively.”

After debate, the question being put on the amendment, it was negatived on the following division:

[Page 8]

YEAS:

Nystrom
Robinson (Burnaby)—2

NAYS:

The Honourable Senators

Austin
Cottreau
Hays
Lapointe
Lucier
Nurgitz
Petten
Roblin
Rousseau

NAYS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Epp
Hawkes
Irwin
Kushner
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Tousignant—21

On motion of Mr. Irwin, it was agreed,-That the French version of Clause 2 of the proposed Constitution Act, 1980 be amended by striking out line II on page 3 and substituting the following therefor:

“de la presse et des autres moyens”

Clause 2, as amended, carried.

On Clause 3 of the Proposed Constitution Act, 1980

Mr. Robinson (Burnaby) moved,-That Clause 3 of the proposed Constitution Act, 1980 be amended by striking out lines 15 to 20 on page 3 and substituting the following:

“3. Consistent with the principles of free and democratic elections to the House of Commons and to the legislative assemblies of the provinces, and of universal suffrage for that purpose, every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly, to be a candidate for election thereto and to be qualified for membership therein, without any distinction or limitation that cannot be demonstrably justified and, in any case, without any distinction on any grounds set out in subsection 15(1) other than the ground of age.”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 17.

Mr. Corbin moved,-That Clause 3 of the proposed Constitution Act, 1980 be amended by striking out lines 15 and 16 on page 3 and substituting the following:

“3. Every citizen of Canada has the”

After debate, the question being put on the amendment, it was agreed on the following show of hands: YEAS: 16; NAYS:8.

Clause 3, as amended, carried.

On Clause 4 of the Proposed Constitution Act, 1980.

[Page 9]

On motion of Mr. Corbin, it was agreed,-That the French version of Clause 4 of the proposed Constitution Act, I980be amended by striking out lines 20 to 24 on page 3 and substituting the following:

“4. (I) Le mandat maximal de Ia Chambre des communes et des assemblees legislatives est de cinq ans a compter de Ia date fixee pour le retour des brefs relatifs aux elections generales correspondantes.”

Mr. Robinson (Burnaby) moved,-That Clause 4 of the proposed Constitution Act, 1980 be amended by
(a) striking out line 26 on page 3 and substituting the following:
“(2) In time of real or imminent war,”;
(b) striking out line 33 on page 3 and substituting the following:
“of Commons or the legislative assembly present and voting, as”; and
(c) adding immediately after line 34 on page 3 the following:

“(3) No continuation under subsection (2) of the House of Commons or a legislative assembly beyond five years shall last longer than six months but a continuation may be renewed under that subsection before it expires.” After debate, at 6:00 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING

(78)

The Special Joint Committee on the Constitution of Canada met this day at 8:10 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Austin, Cottreau, Hays, Lapointe, Lucier, Muir, Petten, Rousseau, Tremblay and Yuzyk.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Fraser, Gingras, Hawkes, Irwin, lttinuar, Kushner, Lapierre, MacBain, McGrath, Nystrom and Robinson (Burnaby).

In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Appearing: The Honourable Robert P. Kaplan, Acting Minister of Justice.

Witnesses: From the Department of Justice: Mr. Roger Tasse, Q.C., Deputy Minister and Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980, and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1 .)

[Page 10]

The Committee resumed debate on the motion of Mr. Robinson (Burnaby),-That Clause 4 of the proposed Constitution Act, 1980 be amended by

(a) striking out line 26 on page 3 and substituting the following:
“(2) In time of real or imminent war,”;
(b) striking out line 33 on page 3 and substituting the following:
“of Commons or the legislative assembly present and voting, as”; and
(c) adding immediately after line 34 on page 3 the following:
“(3) No continuation under subsection (2) of the House of Commons or a legislative assembly beyond five years shall last longer than six months but a continuation may be renewed under that subsection before it expires.” The question being put on part (a) of the amendment, it was negatived on the following division:

YEAS:

The Honourable Senator

Muir

YEAS:

Messrs.

Epp
Hawkes
Kushner
McGrath
Nystrom
Robinson (Burnaby)—7

Nays:

The Honourable Senators

Austin
Cottreau
Hays
Lapointe
Lucier
Petten
Rousseau

Nays:

Messrs.

Bockstael
Campbell (Miss)(South West Nova)
Corbin
Gingras
Irwin
Lapierre
McBain—14

The question being put on part (b) of the amendment, it was negatived on the following show of hands: YEAS 2; NAYS; 3.

The question being put on part (c) of the amendment, it was negatived on the following division:

[Page 11]

YEAS:

The Honourable Senators

Muir
Tremblay

Yeas:

Messrs.

Beatty
Epp
Fraser
Hawkes
McGrath
Nystrom
Robinson (Burnaby)—9

NAYS

The Honourable Senators

Austin
Cottreau
Hays
Lapointe
Lucier
Petten
Rousseau

Nays:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Gringas
Irwin
Lapierre
Mackasey—14

Clause 4, as amended, carried. On Clause 5 of the Proposed Constitution Act, 1980

Mr. McGrath moved,-That Clause 5 of the proposed Constitution Act, 1980 be amended by
(a) renumbering clause 5 on page 4 as subclause 4(3); and
(b) adding thereto immediately after line 3 on page 4 the following heading and clause:
“Right to Information

5. Everyone has the right to have reasonable access to information under the control of any institution of any government.”

Mr. Robinson (Burnaby) moved,-That the proposed amendment to Clause 5 of the Constitution Act, 1980 be amended by striking out the words “institution of any government” and substituting the following:

“institution of the government of Canada or any provincial or local government.”

After debate, the question being put on the subamendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 21.

After debate, the question being put on the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators

Muir
Tremblay
Yuzyk

[Page 12]

YEAS:

Beatty
Epp
Fraser
Hawkes
McGarth
Nystrom
Robinson (Burnaby)—10

NAYS:

The Honourable Senators

Austin
Cottreau
Hays
Lapointe
Lucier
Petten
Rousseau

NAYS:

Messrs.

Bockstael
Campbell (Miss)(South West Nova)
Corbin
Gringas
Irwin
Lapierre
Mackasey—14

Clause 5 carried.

On Clause 6 of the proposed Constitution Act, 1980

Mr. Robinson (Burnaby) moved,-That clause 6 of the proposed Constitution Act, 1980 be amended by
(a) adding immediately after line 5 on page 4 the following:
“(2) Canadian citizenship that is lawfully acquired is inalienable.”;
(b) renumbering subsections 6(2) and 6(3) as subsections 6(3) and 6( 4) respectively.

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 10; NAYS: 14.

Mr. Ittinuar moved,-That clause 6 of the proposed Constitution Act, 1980 be amended by (a) striking out the word “and” at the end of paragraph 6(3)(a) on page 4; and (b) striking out line 23 on page 4 and substituting the following: “services; and

(c) any laws or practices that are reasonably justifiable for the purpose of mitigating any environmental or social impact of any activity on the community, culture, economy or society of any of the aboriginal peoples of Canada.”

After debate, at 10:01 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Pregent
Paul Belisle

Joint Clerks of the Committee


[Page 13]

EVIDENCE

(Recorded by Electronic Apparatus)
Thursday, January 22, 1981

The Joint Chairman (Senator Hays): Order, please. If the honourable members will take their seats, we will get along with our proceedings.

This morning we will be continuing the debate of the Constitution act, resuming the debate on the motion of Mr. Epp on Clause 1, page three, and our first speaker is the honourable David Crombie. Mr. Hawkes?

On Clause 1-Rights and Freedoms in Canada

Mr. Hawkes: Thank you, Mr. Chairman. I hope my colleague, Mr. Crombie, will arrive before we are done with this amendment.

I sat here yesterday and recalled previous meetings of this Committee and one day in particular when Mr. Mackasey took exception to a statement I made that it was my belief at that time that the Committee would find it very difficult to treat this piece of legislation in the manner that a variety of witnesses were asking us to treat it, with open minds, rather than with preset government instructions. One of the comments which he made was that I might be quite surprised by the degree to which I, and other members around this table, might be persuasive; and I think we have encountered our first clause of substance and import in which it behooves one to attempt to be persuasive.

What we are asking on this side of .the table in this amendment is to add at the beginning of Schedule B of the Constitution act, 1981, the first set of words which appear under the Canadian Charter of Rights and Freedoms. The way that Clause sits now, and I would like members opposite to perhaps picture a new Canadian, someone who has applied for status to come into this country as a new immigrant and faced with the Clause as it now sits, this is the definition of our nation and its rights and freedoms, and it says:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and demOcratic society.

I think of those new Canadians who have perhaps a rudimentary knowledge of either English or French whose vocabularies are limited but will grow through contact with our society, and I wonder what that means to them. I suspect it means very little and I think I could guarantee that it does nothing to lift up the soul to create a climate, to create an create an atmosphere that they could identify with and feel good about.

What we are asking is to add a set of words that have been around since 1960. Those set of words were drawn up by Parliamentarians, some who sit at this table were present, most of us were not. But that was done soon after World War II when I think Canadians generally, and the societies of the world, were more conscious than perhaps we are today of the tragedy that can befall mankind when certain principles are ignored, and that set of words which was drawn up on that occasion and has been present in our citizenship court since

[Page 14]

that time are quite a different set of words, and they carry quite a different meaning, and I think they meet some of the concerns of many of the witnesses who have appeared here before us.

Constitution writing should be an exercise that adds to·the strength of the nation rather than detract, and those words say as follows:

1. Affirming that
(a) the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free individuals and free institutions,

In that first clause the word “free” appears twice and if we think of the context of 1960 following World War II, the importance which society was placing at that time on free and on freedom, and it goes on to say:

(b) Individuals and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law,

I suggest to the members around this table that that set of words may not be a set of words that any one of us would choose but it is a set of words that provide a context for a charter of rights and freedoms that is considerably better than the context which the clause, as it now sits, provides, and that we should be very, very careful in this climate of stress that we, as individual members of Parliament charged with the responsibility and the obligation to attempt to arrive at a set of words, we should be conscious of that responsibility to attempt as best we can to provide Canadians with a new constitution that will, in fact, carry some elements of inspiration with it.

I sat here yesterday and I heard the Minister speak on behalf of the government and the tone of that speech was in opposition to the addition of the words, and that opposition I think was founded on two principles and I would like to deal with each of them.

The first principle was that during the course of the summer in the First Minister’s meeting, the First Ministers could not agree on a set of words that might set the tone and set the stage for this act, and we on this side of the table have no disagreement with that assertion, that during the course of the summer agreement that was not possible. But that does not seem to have stopped the government from the changes they propose to Parliament, it does not seem to have stopped the government from proceeding on a course of action that goes far beyond disagreement, that in fact has resulted in six of the partners of this Confederation taking the federal government to court. For the government to use the argument that agreement was not possible in the summertime as an excuse for avoiding the responsibility and the obligation to attempt to set in inspirational language some kind of beginning for this constitution is simply not acceptable.

You cannot use the argument that it is all right to proceed in the face of the fact that six provinces are taking you to court and then attempt to argue that a particular portion of this constitution does not belong simply because people cannot agree to it. I suspect, and I say to the Minister, that the insertion of this set of words at the beginning of Clause 1.

[Page 15]

would be a great deal more agreeable to the partners of Confederation than the over-all course of action in which the government has embarked.

The second principle which was enunciated by the Minister on behalf of the government was that what we are engaged in now in the government’s view is a first step in constitutional renewal. The logic of that I think runs somewhat as follows: that if we leave a gap, what the Minister is saying to us in the context of first step is that in second step we can fill in the gap.

If that is the logic of the Minister, then I counter with the following: if we put in a set of words now and we move to the second step, we can change that set of words. If we find a set of words that meet our purpose better, then we can change the words. You can change a gap; you can change an absence of something into something; you can change something that is already there into something more suitable and, in fact, you can take it out if that is the change which step two, in the Minister’s words, would lead us to.

I think we are at a crossroads. We are on Clause 1; we are at the first amendment proposed by the members of the Official Opposition of the Parliament of Canada. Those are not a set of words which will have impact in any large measure and perhaps in no measure on the law in this country. Certainly they are a set of words which will interfere with the partners of Confederation much, much less than other sets of words which we find in this bill.

All we seek to do on this side of the House is to meet our obligation, one which was expressed to us by many of the witnesses who appeared before us who asked the members of this Committee to take seriously their request that somehow in some fashion in this constitutional renewal process we make an attempt to lift the soul, to lift the hearts of Canadians.

We are not asking a great deal from the government majority. We have given no indication that changes in words would be unacceptable to us, but I think we sit on this side of this table at this time determined to meet our obligation to the Canadian people; that a constitution is not a statute; a constitution is a document that new Canadians can feel proud of, that old Canadians can feel proud of, the kind of document that children can be shown early in their school career that will help build their sense of commitment to the nation and to each other.

I ask the members opposite whether or not votes on this parlicular amendment can be justified along party lines or whether each person has to look at their own conscience to make a decision on how to vote in that context. Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): The honourable Mr. Crombie.

Mr. Crombie: Mr. Chairman, I was waiting for a reference from the library. Is there any opportunity for somebody else to speak and then you could possibly come back to me?

The Joint Chairman (Senator Hays): We are ready to vote on the amendment.

[Page 16]

Mr. Crombie: Am I the final speaker?

The Joint Chairman (Senator Hays): Yes.

Mr. Crombie: Perhaps I can do without the reference from the library.

Yesterday I had the opportunity to listen to the objections raised by the Minister, Mr. Robinson and Senator Austin about the inclusion of the amendment placed by Mr. Epp with respect to the Charter of Rights.

My notes indicate that the reason Mr. Austin was concerned about it was that, in his view, the issue was whether or not the wording used by Mr. Epp, taken from the Diefenbaker bill of rights, was relevant to a charter of rights, and that perhaps it was more relevant to the preamble to a constitution.

Senator Austin was trying to suggest that it might be better if it were done in that way.

The objection by Mr. Robson was that there were a lot of people who did not believe in God, and therefore it should not be included and that any such inclusion would diminish their rights as a consequence.

The Minister’s objection was that there was no agreement in the Cabinet and that there was some difference between the French and English versions.

Out of all that, Mr. Chairman, my concern was that the point of having the phraseology suggested by Mr. Epp was being forgotten. There are some things I would like to draw the attention of the Committee before they are forgotten, and if our motion is to be voted down-a matter about which I would be very sad; but I hope the point of having the suggested phraseology of Mr. Epp’s is not forgotten.

The reason why, Mr. Chairman, we put in the wording is for the very same reason that the wording for all constitutions, in the Western World at any rate, have always included some suggestion that there was a power beyond a government power. In all laws-in all laws-particularly constitutional laws, there is not only the letter of the law, but the spirit of the law; and the spirit of the law comes from the recognition that there is a supreme being-a God, a life force, an entity, whatever phraseology people would care to use, to indicate that beyond people and beyond governments there is another authority.

Constitutions are made up of the values, interests and beliefs of the people that that constitution is supposed to govern. It cannot do so unless the fundamental source of the principles upon which that society rests are articulated clearly.

That is why the first point I would like to make is that, unless you have principles relating to a supreme being, to the dignity and worth of the human person, to the position of the family, a recognition of spiritual values, then the laws will not be animated by the spirit that they are supposed to be.

The second reason, Mr. Chairman, is that ironically-and I say that in relation to Mr. Robinson’s intervention the other day-when you look at certainly the European tradition, you will find that all the constitutions made an appeal to spiritual as well as to temporal powers for the simple reason that it allowed opinions other than those of the government to prevail.

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When I put questions the other day to the Minister, I was not doing so idly, when I asked him whether or not he thought rights came from government or from some other source.

The fact of the matter is that our rights do not come from government, but from other sources; from tradition, from God, or whatever other word you would care to use to indicate that there are powers beyond the government and people.

That second point, that we use an appeal to spiritual as well as temporal power has allowed people to differ with governments. The essential kernel of the western liberal democratic faith is such that dissent is allowed from government, and dissent has come by an appeal over governments to God. That is the history of our tradition.

Every major departure in our understanding of how we ought to change has come from an appeal to a higher authority than’the government that has been oppressive to us.

Ironically-and I say ironically in relation to Mr. Robinson’s intervention-that appeal to higher authority has allowed for freedom and dissent to occur.

Mr. Chairman, beyond the question of making sure that the constitution is rooted in values, interests and beliefs that we agree on, and beyond the question of making sure that we have a supreme being that we can appeal to for dissent, the third reason why there ought to be that preamble recommended by Mr. Epp is that those who are interested in change and pluralism, as Mr. Robinson is, must know that the only way in which change and freedom and variety occur is on the basis of law, order and continuity.

If there is no law, order or continuity, then there is not the change, not the variety, not the pluralism that Mr. Robinson and others would like to have.

That is why that premable is necessary. It is necessary for a fourth reason, and that is that at least in this country, when it comes to a bill of rights, it is the only bill of rights we have ever had and all we ask in our motion is that the preamble to the one bill of rights we have ever had, that we continue it. God knows, Mr. Chairman, that this country has few enough symbols that unite us.

It is only a short generation ago that we had a bill of rights which carried exactly this preamble to its rights section. A generation later we want to cut it out!

So, let me say to you, Mr. Chairman, that the reasons constitutions from time immemorial have included a preamble to a supreme being, to the integrity of the individual, to the family, to spiritual powers, have been first of all to make sure that we reflected the values, interests and beliefs that our community holds.

Secondly, it became a guide to judges who, when they look, for example, at the proposed Clauses 1, 2, 3, 4 or any other of the proposed sections dealing with legal rights, they would be interpreting those sections and if they know that the framers of the constitution meant that the family was an institution which was sacred to the nation, they would interpret those rights in the light of the fact that we make mention of the family as an

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institution. If they make their interpretation in relation to Clause 15, they would be allowing those who have been held up in the past to speed up more quickly in the future and they would make that in the context of the preamble which has been suggested by Mr. Epp.

The third reason that it is a guide to practical application for courts, and finally there is the one tradition we have in the bill of rights-I think all of those, Mr. Chairman, are extremely important reasons why we should maintain the preamble in the Diefenbaker Charter of Rights as outlined in Mr. Epp’s motion.

Finally, let me say that the reason I am concerned about it this morning in particular is that I have the feeling that, despite the protestations of Senator Austin and, indeed, the Minister, that it is going to come back some time and we are going to be able to get one, I worry very much that that might not be true; that however we may think that is so, my reason for not believing them-although I wish I could, though I think they mean it sincerely-is that they have put the cart before the horse already.

Specific rights do not give you fundamental principles. Fundamental principles give you specific rights. If you do not start with those fundamental principles, then my concern is that you will not end up with them either.

So, when we vote today we are voting on whether or not we are going .to have those values and beliefs in a constitution. The delay is simply a way of saying no.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Crombie.

Mr. Mackasey.

Mr. Mackasey: Mr. Chairman, I raise a point of order with a view to getting some clarification and not to question the wisdom of Mr. Crombie’s contribution and not to speak to the clause.

We will be voting on this today. Are there any other speakers who would like to speak on this?

The Joint Chairman (Senator Hays): One more speaker.

Mr. Mackasey: Well I will defer to him.

The Joint Chairman (Senator Hays): Mr. Epp.

Mr. Epp: Mr. Chairman, I understand from the rules you have established, Mr. Chairman, that when the mover speaks a second time that ends debate. Does that cause any difficulty for Mr. Mackasey?

Mr. Mackasey: That is not my point. It has nothing to do with how many times I speak.

Mr. Epp: Very well.

Thank you, Mr. Chairman. I am going to make one more attempt to convince members of the Liberal party of the wisdom of what we are proposing-because they are not our words, but words agreed to by former Parliaments, and have become part of the Canadian tradition: Mr. Chairman, what we are asking is that, as so ably put by Mr. Crombie, we recognize the sovereignty of God in the nation.

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Let us go back to how the nation was founded. After the Charlottetown conference and as they went to the Quebec conferences, the Fathers of Confederation studied the 72 resolutions.

At that time one of the burning questions was what name should they give to the country. Obviously it was going to be Canada. But was it going to be the Kingdom of Canada or Canada only. What was it going to be?

At that time one of the Fathers of Confederation, as he was participating in the debates, was also seized with this problem and question, of what for future generations will you call this country-Canada. It was his habit, Mr. Chairman, to have his daily devotios and to read for his own spiritual purposes every morning from the holy scriptures.

You will find, Mr. Chairman, that from those personal devotions of one Father of Confederation, a legacy has come down through our history which we today want to deny. That legacy is this. AS Tilley was having his devotions daily, he came: across Psalm 72, Verse 8. that verse reads as follows:

And He shall have dominion from sea to sea and from the river to the ends of the earth.

We became known as the Dominion of Canada and threfore had in our coat of arms the motto “from sea to sea”. That is our history, that is our tradition.

Mr. Chairman, this nation was founded on those principles and the Fathers of Confederation saw it necessary and saw it wise that the nation of the future, if it was to be united, had to recognize the supremacy of God, and they recognized it in that motto. In fact, Mr. Chairman, you will find in various places in the Parliament buildings, which were reconstructed after the fire of 1916, and so which date back to the 1920s, you will find scattered throughout the Parliament buildings in stonework, in carvings in wood, this motto and derivatives of that motto.

I take it that if we vote today against the amendment that means nothing and that the past is over.

We have always prided ourselves that we are a nation under god, we have always prided ourselves that we are a dominion from sea to sea and to the northern sea, and that was given expression, I suggest, by the Fathers of Confederation who in their wisdom built it better than they knew.

Today we want to deny that. Those spiritual values are not important for us any more to put them in as guidelines from which our constitutional amendments, our constitutional provisions shall flow. So what we have today, Mr. Chairman, is, I guess what we can say is that there is none so blind as he who will not see, he who will not see the past and who then, I suggest, will have difficulty in building for the future.

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Mr. Chairman, throughout the past one can also look at the philosophers, the wise men of the past who also looked at these questions, and I suggest to you today, Mr. Chairman, that we are facing something similar to what Euripides said: for those whom God wishes to destroy he first makes mad. Is it power that is making them mad?

Mr. Chairman, what we are facing is not the desire for a Canadian constitution; what the government wants is a Trudeau coonstitution, that is what they want.

Mr. Mackasey: Mr. Chairman, on a point of order.

Is this relevant? You, Mr. Epp, made the point very astutely and very eloquently yesterday that we would stick as close as possible to the issue and now we are talking about the Prime Minister and his motives; that is hardly, Mr. Chairman, I suggest relevant.

It might have been acceptable in the latitude in the general discussion of a week or two ago but hardly the moment right now.

Mr. Epp: Mr. Chairman, if I can continue after that intervention, what I am pointing out to Mr. Mackasey is that you are denying your past and you are using the majority that you have to insist precisely that only your vision of a constitution shall prevail.

The Prime Minister and Mr. Chretien have said there will be no further amendments and today we are seeing proof of that statement.

I say to you, Mr. Chairman, that if they vote against these amendments, only history will condemn them.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.

Mr. McGrath: On a point of order, Mr. Chairman. We feel very strongly about this amendment, we are not going to be seeking recorded votes on every amendment that comes up for a vote, obviously, but on this particular one we would like to know where each member of the Committee stands.

The Joint Chairman (Senator Hays): Is that agreed, we have a recorded vote?

Some bon. Members: Agreed.

The Joint Chairman (Senator Hays): Agreed.

Mr. Mackasey: Mr. Chairman, I want to know what I am voting on. The point I am making is an important one to me. The next that I have in front of me, and I am trying to help the Conservatives, has imperfect translation and I think it should be rectified before we vote on it, or understand what we are voting on and at least translate it later, because in the English we have “Canada”, and if it has been changed since last night, I would appreciate it, but in the French we do not. We have the Canadian nation in one version and Canada in the other

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The Joint Chairman (Senator Hays): Mr. Mackasey, on your intervention, if you do not like the translation you might feel free to vote against it.

Mr. Mackasey: Mr. Chairman, in all fairness to your wisdom that is not a very wise remark and there is something much more fundamental in your suggestion, and the suggestion is that we should know, it should be precise because either one version or the other is inaccurate through a mistake in translation and it is .up to the opposition to tell us which is the official version, and then we can translate it.

The Joint Chairman (Senator Hays): On the same point of order I have Mr. Crombie.

Mr. Crombie: Mr. Epp may have made a comment on it already, but yesterday when the matter was raised by the Minister he indicated there was a difference between the French version and the English version, we agreed to have the same thing said and he used the words-Senator Tremblay intervened and I do not know where Senator Tremblay is right now, but I want it clearly understand that it is not our intention to have any difference between the two translations. I thought it was agreed to yesterday, and the English is the one that was intended.

So it should be translated, I think the Minister translated the words yesterday into the record, but at any rate I would not want anyone to have to vote, Mr. Chairman, on such a fundamental point as to what are the fundamental principles animating the constitution so that he could not deal with it because of a difference in translation.

It is our intention to have it mean the same thing in both languages and I would ask the Clerk to make sure that the wording is …

Mr. Mackasey: Canadian nation?

Mr. Crombie: Yes.

Mr. Mackasey: And not just translated into Canada.

The Joint Chairman (Senator Hays): The Committee is agreed on a recorded vote?

Some bon. Members: D’accord.

The Joint Chairman (Senator Hays): The vote is on the Conservative amendment.

Amendment negatived: Yeas, 10; Nays, 14.

Mr. McGrath: We ‘should sing the Battle Hymn of the Republic, Mr. Chairman.

The Joint Chairman (Senator Hays): We will now deal with Clause 1, the New Democratic amendment, and I will invite Mr. Nystrom.

Mr. Nystrom. Mr. Robinson is not a member and I just recognize him, I am sorry.

Mr. Nystrom: In my capacity as Whip I have just put Mr. Robinson on the Committee, Mr. Chairman.

But in the meantime, while you are being notified officially of that, I would like to move that Clause 1 of the proposed

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constitution act as amended, be amended by adding immediately after the portion of line 3 on page that reads “claims set out in it” the following:

and the equal right of males and females to the enjoyment of those rights and freedoms,

And with your permission, Mr. Chairman, I would like to ask our justice critic, Mr. Robinson, to outline the reasons why we are presenting this amendment to the Committee.

Mr. Robinson: Thank you, Mr. Chairman.

I will now read the proposed amendment in French. I move that Section 1 of the proposed Constitution Act, 1980, be amended by-

Joint Chairman (Senator Hays): Mr. Robinson.

Mr. McGrath: On a point of order, Mr. Chairman. Is Mr. Robinson a member of the Committee?

The Joint Chairman (Senator Hays): Well I understand that the document is on the way up to the Chair, is that correct, Mr. Nystrom?

Mr. Nystrom: Yes.

Mr. Crombie: Have they got unlimited substitution?

Mr. McGrath: I believe that may be stretching the rule just a little bit far.

The Joint Chairman (Senator Hays): They apparently have a little difficulty with their housekeeping.

Go ahead, Mr. Robinson.

Mr. Nystrom: I understand, Mr. Chairman, that the Whip is allowed to make a Committee change whenever the Whip sees fit and in consulting with the Whip, the Whip made the change.

Mr. Bockstael: Mr. Chairman, on a point of order.

I understood the ruling was that when a member that was appointed to this Committee initially cannot be present, a substitute can be; but when both are present, then one has to stay for the time he is here, is that not the understanding?

The Joint Chairman (Senator Hays): I suppose that is that is the ruling. I do not have it, but if you give me a moment we will take a look at the ruling on Mr. Bockstael’s intervention. Mr. McGrath: I would like to support the proposition put forward by Mr. Bockstael because if you allow this procedurPto continue, then you are going to effectively have three members from the NDP on this Committee where they are only entitled to two.

The Joint Chairman (Senator Hays): Does any other member wish to contribute to the …

Senator Petten: Mr. Chairman, I agree with both my colleague and my colleague across the way, Mr. McGrath, you cannot be jumping back and forth every five minutes.

Miss Campbell: Mr. Chairman, I would think that any number of members can come and sit either at the table or in the room, and I would assume that the changes have been

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made as is normal in any Committee, at least in the Committees I have Chaired or been on in the past. I do not know what we are wasting time for.

Mr. McGrath: We can bring in a line of members here and keep changing and alternating through the day.

Miss Campbell: You did this morning. The Joint Chairman (Senator Hays): Yes, Mr. Nystrom. Order, please. Mr. Nystrom?

Mr. Nystrom: On the point of order, and I was hoping I did not have to speak on the point of order, Mr. Chairman, but I would like you to look back over what has happened at this Committee for the last two or so months. All parties have had many, many changes. I can recall, for example, in the Conservative Party seeing Mr. Dinsdale here for the section on the handicapped when we were questioning witnesses that appeared on the issue of the handicapped.

I can recall on some of the native issues certain people appearing before this Committee, like Mr. Allmand who was given a lot of oppo>tunity to voice his concern and put his questions, and the precedent of this Committee is clearly established and that is that the parties can substitute members whenever they see fit, but no party can have at this Committee at any time more than their proper allocation of members.

For our party it is two members. This morning we started off with Mr. Rose and myself and because of the fact we are now dealing with one of our amendments in legal rights, we wanted to put our legal critic or justice critic, Mr. Robinson, on the Committee. I argue with you, Mr. Chairman, we have every right to do so, and if you rule against that, then you are ruling against the precedents that are clearly established by this Committee and the precedents of other Committees in the House of Commons.

The Joint Chairman (Senator Hays): Mr. Joyal, on the same point of order.

The Joint Chairman (Mr. Joyal): I am really sorry that this morning we have that incident because we were able, in the past two months and a half, to operate very well and very softly and yesterday I was led to give some statistics on the time allocation, not because the Chair wants to be mean or the Chair is suggesting to all honourable members or each party to be mean on time allocation; and I think that if there is one thing that has gone softly in this Committee it is essentially the time allocation. When we are in the process of dealing with amendments which need votes, I think that we need some kind of cohesion and what I would suggest to all the parties is I would not suggest and I am certainly not prepared to suggest to the Chair this morning to rule that the membership of the Committee should be fixed this morning until the adjournment or the completion of our work.

What I would suggest very simply to all the parties is to keep the membership at least on one clause. I understand that some party might have or some members of Parliament or honourable Senators might have a direct interest in one clause

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in particular, and not in others, and I think it is up to a party to decide who will sit on its side for one section but I would resent really that for one section each party would change as was said and very properly said by honourable James McGrath, that each party would keep in a row as many members that it wants to. I think that could not be fair certainly for all the members who have being sitting here for two months and a half.

So what I am suggesting at this point and it is not a ruling and I would not propose to make it a ruling, but what I would suggest this morning is that when we start with a new section that a party can have his membership for that section and try to, as much as possible, keep that membership for that section so that we have more cohesion for all the information and arguments that have been provided; because members will resent in a way that after having sat here for 200 hours and having listened to witnesses questioned, heard other colleagues put forward their views and have someone come from outside and reopening a debate on an issue that has been dealt with at length in the past 200 hours. What I suggest and I repeat again is that each party keep his membership and they may change it, but when we have dealt with one clause and when we have completed one clause; which in my mind seems a very logical and very reasonable attitude for all the participants around the table.

The Joint Chairman (Senator Hays): Mr. Rose, I am sorry that I cannot recognize you now if Mr. Robinson is on the Committee.

Mr. Corbin.

Mr. Corbin: I simply want to say on behalf of our party that we concur with the Chairman’s remarks, and I think it is extremely unfair for a party to get some of its members to speak in the process of examination, a member who will not vote on it, and therefore, we concur I 00 per cent with the Chairman’s recommendation.

The intention is not to deny any member of Parliament from any party to participate in the process, but we ought to know what the basic game plan is and I would only add further to your comments that that should apply up to the conclusion of the vote or the disposal of the article or clause in question. Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you very much. Mr. Robinson?

Mr. Robinson: Mr. Chairman, if I may on this point, I think that we should put this in a context that Mr. Rose, to the best of my knowledge, has not spoken, has not taken any time whatsoever on this Committee, was present for a vote which would have taken exactly the same amount of time no matter who voted. So I do not think there should be some suggestion that in any way this is an abuse of the time requirements.

The concern that I would express with respect to the Chairman’s ruling is first of all that it would be, to the best of my understanding, totally unprecedented in the clause-by-clause examination of bills. I recognize the government’s concern in

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getting this through as quickly as possible but on the other hand, it deserves careful and adequate consideration.

Mr. Chairman, there are some sections, and I recognize that the Chairmen are attempting to facilitate meeting the February 6 deadline, that is certainly understandable, but in our rush to meet the February 6 deadline we should not be abrogating our responsibilities to the people of Canada to come up with a good package and we should not be bending procedural rules which exist so far in an attempt to do that.

Mr. Chairman, I would also just note, as Mr. Nystrom has just pointed out to me, that in fact Mr. Rose is leaving because he has another Committee to attend. So to suggest that somehow there should be some rule that Mr. Rose or the initial witness should stay for a certain portion of the session would be inappropriate.

Finally, Mr. Chairman, with respect, I suggest that it is unprecedented and also that it would be inappropriate and ill advised to apply a rule to a particular section. I give the example of Clause 15. Clause 15 contains a number of different subject matters. There may be discussions, for example, on the part of the handicapped; there may be representations made with respect to affirmative action; someone may want to come in and make a particular point about women. Within the over-all context of time allocation, Mr. Chairman, that is within the precedents that have been established in other Committees and is certainly within the precedent that this Committee has established. I recognize that on most clauses only one speaker wiii be required because there is essentially one area that is being dealt with, but to extend your argument, Mr. Chairman, to a clause, like Clause II, for example, which has some I 0 or 12 subclauses covering a wide variety of different areas, I am sure you recognize would not be reasonable in the circumstances.

The Joint Chairman (Senator Hays): Mr. Lapierre, on the same point of order.

Mr. Lapierre: I concur fully with Mr. Robinson on the question that we have got to be responsible, but if he is so responsible I think after all the talking he is doing, he should take the responsibility to vote with what he said.

The Joint Chairman (Senator Hays): Thank you, Mr. Lapierre. What the honourable members are saying really is that it is a suggestion that we try and get along in the Committee, and I would hope that Mr. Nystrom and his colleague would kindly go along like we have in the last two and a half months.

It is a very important issue and I realize that, and I am sorry that I cannot recognize Mr. Rose if he is not a member of the Committee at this point, I do recognize Mr. Robinson and that he would proceed.

Mr. Robinson: Thank you, Mr. Chairman.

I was proposing an amendment in French to Clause 1 and I will repeat it.

That Clause 1 of the proposed Constitution Act of 1980 be amended by

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(a) adding immediately after the portion of line 3 on page 3 that reads “-doms set out in it”, the follo’wing: J and the equal right of males and females to the ~njoyment of those rights and freedoms,

(b) striking out, on page 3, the part reading” “subject only to such” as well lines 4, 5 and 6.

Mr. Chairman, there are three major concerns which we are attempting to address in proposing this amendment and, naturally, in the course of questioning the Minister, a number of those …

The Joint Chairman (Senator Hays): Order, please.

The Joint Chairman (Mr. Joyal): I am sorry to interrupt you, Mr. Robinson, but there has been a modification that your party has brought to your amendment that has removed some words that you have just read, and in conformity with what we have voted on yesterday and this morning, I think that you should remain on a sense of the new text because otherwise I will have to rule out your amendment.

I would invite you to read the proposed amendment that your party has modified it to take into account what we have voted on yesterday, and I would like you to read it again so that members around the table know exactly on what they are voting.

Mr. Robinson: I do apologize, Mr. Chairman. I was looking at the amendment prior to the changes which were voted upon yesterday.

Taking into consideration those changes then, the motion would read as follows:

That Clause I of the proposed constitution act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

and the equal rights of males and females to the enjoyment of those rights and freedoms,

The Joint Chairman (Senator Hays): Would you read it in French also, Mr. Robinson?

M. Robinson: En francais?

Le copresident (senateur Hays): Oui.

Mr. Robinson: Mr. Chairman, it is proposed:

that Clause 1 of the proposed constitution Act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “”-doms set out in it” the following:

and the equal right of males and females to the enjoyment of those rights and freedoms.

Mr. Chairman, I would point out that this does insert at the end of line 3-there has been some question about whether or not this does adequately take into consideration the proposed amendment.

The Joint Chairman (Senator Hays): Order, please. Mr. Robinson, we established quite some time ago that we should have these amendments in writing in both French and English. The chair and the members should have them. I am going to permit you to go on this morning but I think from now on

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when we have amendments that we should have them and they should be circulated.

Go ahead.

Mr. Nystrom: My understanding, Mr. Chairman, is that they have been circulated.

Mr. McGrath: Mr. Chairman, maybe the NDP are having problems getting their act together, but we still have the work of the Committee to think about.

The Joint Chairman (Senator Hays): Go ahead, Mr. Robinson.

Mr. Robinson: Mr. Chairman, I am sorry, there has been some suggestion that perhaps the French version does not exactly replicate the English version. Now I would have hoped that in the course of translation that that would be the case.

Senator Asselin: You have to have the words of the French version,

ainsi que le droit pour Ies femmes et les hommes ainsi que le droit egal pour les femmes et les hommes. In this you have the equal rights of males and females.

Mr. Robinson: Mr. Chairman I really must confess to some confusion at the remark which has been uttered. I am trying to deal with Senator Asselin who has suggested that the French version does not reflect the English version. Now if that is the case, naturally one would want to change that but if Senator Asselin has an interjection, you might wish to deal with it, Mr. Chairman.

Senator Asselin: The remark I was making, Mr. Chairman, was to the effect that the English version does not correspond to the French version. In English you have “and the equal right of males and females to the enjoyment of those rights and freedoms” and in French you have “and the right of females and males to enjoy them equally”. I think the translation does not reflect the English version.

Mr. Robinson: Mr. Chairman, perhaps, the Conservatives …

Le senateur Asselin: «Hommes et femmes• as opposed to “males and females” …

The Joint Chairman (Mr. Joyal): No, it is not the point.

The Joint Chairman (Senator Hays): On a point order. Mr. Joyal.

The Joint Chairman (Mr. Joyal): I understand the question as raised by honourable Senator Asselin. Senator Asselin is saying that in English we have “equal right” while in the French version we have “droit” which is only “right”. But honourable Senator Asselin will notice that the words “egalite” refers to the equal to qualify the term “right” and I think that it is a translation which is certainly admittable to take into account the fact that equality or equal should refer to the right or the way that right is enjoyed and I am satisfied certainly with the French version but there could be another version that could be sustained to, but I think that this one takes into account the proposed motion by the NDP.

The Joint Chairman (Senator Hays): Senator Roblin.

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Senator Roblin: I am a little confused, Mr. Chairman, because I think that the wording of the English amendment seems to refer to the original form of the clause rather than the amended form of the clause. The French one does not. The French one is correct, but it seems to me that the words “doms set out in it” are taken from the original wording of this clause and not from the amended clause that was adopted yesterday.

Now this is just a technicality and I am sure my honourable friend can straighten it out, but it seems to me we have that problem.

The Joint Chairman (Senator Hays): Mr. McGrath.

Mr. McGrath: Mr. Chairman, on a point of order. I think this point has to be made and it is as well that it be made now.

We worked very hard, well into the night over the weekend, to get our amendments prepared so that they would be before the Committee in terms of the legal technical language of the amendment, in terms of the translation in order to facilitate the work of the Committee. Now we are running into difficulties because the NDP were not ready with their amendments and I think that that is not fair to the members of the Committee, quite frankly. It is certainly not fair to our party because we laid ours out, we worked hard to prepare them and bring them here, everybody had a chance to get them, including the Clerks, and now we are getting amendments from the NDP piecemeal; and I submit to you that we are going to be running into this problem again and again as we proceed, unless of course they can figure out which side they want to be on, the government’s side or our side.

The Joint Chairman (Senator Hays): Mr. Epp, do you have a point?

Mr. Epp: Well, I just want to absolutely concur with what Mr. McGrath said.

But another point that I have to make and I think a lot of us already are discovering that this Committee is very different from those that we have been on in the past. The problem is this, not the membership, I do not suggest that, but it is this: that in other Committees the government puts forward its bill or resolution; the opposition parties put forward their amendments, and the government will telegraph when they will move amendments. What the difficulty is that the government did not move amendments but forward their amendment package. We responded generally to the amended package which has not been passed and I think there has to be one understanding and it was done yesterday, and I want to repeat it, and I am not trying to make the point again, and that is that flexibility has to be there in terms of when an amendment is moved that if it refers to the original or refers to the amended version, that the members of the Committee will have to be flexible on that point.

That is quite apart from the point that is made, that the amendment, if we have them before us, at least we can do some preparatory work beforehand. It is not only for our own thoughts but also in terms of response, and that is making it very difficult.

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The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.

Did you have a comment, Mr. Nystrom? Mr. Robinson?

Mr. Robinson: Mr. Chairman, I do apologize to members of the Committee, apparently I have been informed by the people that have been assisting us in drafting and I might say in passing that I want to echo the remarks of Mr. Epp on the question of drafting. We have received outstanding service, in particular from Edith MacDonald and also from Gerard Bertrand under very, very difficult circumstances, to say the least. They have been working late into the night and certainly we are deeply grateful for the assistance that has been provided and is continuing to be provided to us.

I would like to clarify that there is an error in the proposed Clause 1 that you have before you. Indeed, the point that was made is accurate. In line 3 it should state, instead, as it reads “doms set out in it”, it should refer to the new line 3 and read “rights and freedoms set out in it” and then it would continue with the words “and the equal right” et cetera. If the Clerk could make that change.

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

Mr. Robinson and Mr. Nystrom, maybe on the points of order that have been raised, that you would try and accommodate the Committee as you have done in the past with getting your amendments earlier to the Committee, it is a suggestion that would facilitate our work. We have now wasted about 15 or 20 minutes on this procedural matter and it seems to me that if we had them early enough, as honourable members have suggested, it would facilitate our work. Now would you proceed with your amendment, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman. Just for the record, I think it should be clearly understood that Clause 1 was indeed circulated yesterday, Mr. Chairman, and not today. There was an unfortunate error but I do not think that the record should indicate that it was not circulated yesterday, our proposed amendment to Clause I in both official languages.

The Joint Chairman (Senator Hays): Mr. Crombie.

Mr. Crombie: It is only a question that deals with the wording and I offer no comment on it, just the wording. It is between the English and the French version. The English version was singular when it came to female. Has that been changed?

Secondly, the French version is “women” and then “men”, and in the English it is reversed. I wonder whether that is just a question of taste or politics.

The Joint Chairman (Senator Hays): Mr. Robinson.

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Mr. Robinson: We were not intending to restrict this to one particular female; certainly we did not intend to restrict it to one English female.

So, I would certainly agree it should read “females”.

The Joint Chairman (Senator Hays): Will you proceed with the amendment.

Mr. Robinson: I will try, Mr. Chairman.

The Joint Chairman (Senator Hays): Mr. Robinson, we are waiting for you.

Mr. Robinson: Mr. Chairman, the reason for this proposed amendment to Clause 1 is the following. First of all, it is our submission that the general test which now is in that amended version of Clause 1 being proposed by the government, does not adequately reflect the different types of rights and freedoms which are contained in the proposed Charter.

There are some rights, some freedoms, which should never be derogable, even in times of emergency. They include, for example, the right to protection from cruel or inhuman treatment or punishment. They also include, for example, the freedom from discrimination on the ground of race, colour, sex-in the denial of legal rights under emergency conditions.

Mr. Chairman, it has been suggested by many witnessesand I would point out that those witnesses include the National Action Committee on the Status of Women, the Canadian Advisory Council on the Status of Women, the Canadian Federation of Business and Professional Women of Canada; the submission of the Dalhousie Law Professors, the Canadian Jewish Congress; the New Brunswick Human Rights Commission; the Canadian Civil Liberties Association; Walter Tarnopolsky; Gordon Fairweather; the Canadian Bar Association-many, many witnesses, Mr. Chairman, have proposed that there should be no derogation from certain rights and freedoms in this Charter.

In addition to that, Mr. Chairman, I would like to draw to the attention of members of the Committee the 1978 report of the Lamontagne-MacGuigan Committee, which was considering the proposed Bill C-60.

In that report-and I would like to quote from that report and hope that the government will listen to the concerns which were expressed by that particular Committee:

The case for justifiable limitations on rights by the War Measures Act applies principally to policital rights and freedoms in Clause 6 rather than to the legal rights and freedoms of Clause 7. Many of the more precise legal protections in Clause 7 should not require limitation even in war time crises. For example, we do not see how the state could ever be justified in imposing cruel and unusual punishment.

I am reading now from the report that was submitted on Bill C-60 dealing with this precise point.

In our view, any limitations on the protected rights should be exactly spelled out in the Charter.

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They very clearly state that there are some rights which can never be abrogated under any circumstances.

Mr. Chairman, that is the purpose of our proposed limitation on this Clause.

Now, it is somewhat difficult to deal with our proposed amendment to Clause I without dealing at the same time with our proposed Clause 30, which is the new limitations provisions.

Honourable members have our proposed Clause 30 in both languages before you. I am in the hands of the Chair, but I would like to suggest that it might be appropriate to deal with this proposed Clause 30 at the same time, because it is a proposed limitations clause.

Mr. Chairman, I seek your guidance on that, but I would certainly hope that Committee members would agree to deal with this proposed Clause 30 at the same time and I could make my arguments on that which are virtually the identical arguments on Clause I, and they could both be disposed of at the same time.

The Joint Chairman (Senator Hays): I suppose we would need the unanimous consent of the Committee if we were to go that route.

We would have to stand all the clauses until we get to Clause 30.

What is the feeling of the Committee?

Mr. Mackasey: Mr. Chairman, I do not know if Mr. Epp heard, but the proposal is that we link Clause 30 with the discussion on Clause 1 …

Mr. Robinson suggests we deal with Clause I and Clause 30 at the same time. It would require the unanimous consent because we would be moving to Clause 30 and then back to Clause 2. It would certainly expedite our business.

The Joint Chairman (Senator Hays): Mr. Crombie.

Mr. Crombie: Am I correct in understanding that what is being said is that we have to conclude our discussion on Clause 30 as well or only deal with Clause 30 in so far as the motion from Mr. Robinson is concerned?

The Joint Chairman (Senator Hays): That is right.

Mr. Crombie: That is all you are saying. Then that is all right.

So you do not have to stand down all the clauses to deal with Clause 30. Only within the motion would Clause 30 be changed to the extent that we adopt the motion moved.

The Joint Chairman (Senator Hays): If we accept the amendment.

Mr. Robinson.

Mr. Robinson: I thank honourable members of this Committee for that agreement.

If honourable members of this Committee would then refer to the proposed amendment to Clause 30 …

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The Joint Chairman (Senator Hays): We are dealing with Clause I. If we deal with Clause 1, then we can go to Clause 30. Would that not be the correct procedure?

The Joint Chairman (Mr. Joyal): And I want to make it very clear, Mr. Robinson, that we should first address ourselves to Clause 1, the amendment you have proposed, and taking into account what would happen with this amendment, then we will move to Clause 30.

But the Chair certainly is not prepared to entertain two amendments at the same time.

We have to address ourselves to one amendment first, which is the amendment which you have just read pertaining to Clause 1. Depending upon what happens on the result of the vote on that amendment, then if it is accepted the Chair will invite you to go with the amendment you are proposing on Clause 30.

But at this point, the Chair would not want to receive two amendments at the same time.

Mr. Robinson: I understand that.

That, with respect, was my understanding of the agreement with the Committee. But I am merely pointing out, Mr. Chairman, that the effect of our proposed amendment to Clause I would be to delete any limitation whatsoever from Clause 1; it would be to make a statement that this Charter of Rights and Freedoms guarantees the rights set out in it, and also guarantees them equally to males as well as females.

The Joint Chairman (Senator Hays): I am sorry. On a point of order, Mr. Epp.

Mr. Epp: Mr. Chairman, I frankly do not know the course that you are embarking on, how we are going to get any agreement simply on process, much less on amendments.

I think Mr. Robinson has now clearly pointed out that they intend to move amendments at the appropriate time where they would delete all or any part of any limitation. That is his right; but I think that should be done at the time the clause is called.

The Joint Chairman (Senator Hays): Go ahead, Mr. Robinson.

Mr. Robinson: Mr. Chairman, that is what is being done. The proposal with respect to Clause 1 is to remove the limitation provision from Clause 1. I think it would be somewhat artificial in that context not to make any reference whatsoever to what is intended to be done on limitations.

If Committee members are to consider the merits of this particular amendment, the first question which will spring to mind is that if you are getting rid of any limitations in Clause I, how can we possibly support the amendment without knowing if there is going to be another limitations clause. Clearly, that should be understood. I only refer to Clause 30 for that purpose.

The Joint Chairman (Senator Hays): Proceed.

Mr. Robinson: As I say, the proposal is that Clause 1 of the proposed constitution act should be a simple, affirmative statement, guaranteeing all rights and freedoms set out in the

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Charter, and in particular, guaranteeing the equal rights of males and females to the enjoyment of those rights and freedoms.

The reason for the addition of that particular clause is in response to the excellent suggestion of the Canadian Advisory Council on the Status of Women and others, modified, instead of “men and women” to read “males and females”, recognizing that discrimination on the basis of sex can occur also with children-a point which was made by the Canadian Council on Children and Youth.

Mr. Chairman, the reason for this, as I say, is first of all we believe that the first Clause in a charter of rights should be an affirmative clause setting out the rights that are guaranteed, and then that there should be an affirmative statement, and a limitation clause is not appropriate at the beginning of a charter of rights-a statement of the fundamental rights and freedoms of Canadians.

The Minister has suggested that it is perhaps more honest to put it at the beginning.

Well, Mr. Chairman, with respect, that does not deal with the argument that if it does not make any practical difference then there is great symbolic difference in setting out rights affirmatively and at the conclusion indicating what rights may be limited.

Mr. Chairman, there are two other concerns with respect to this matter. I believe-and it has been suggested by a number of witnesses-that there should be two different tests; one test should apply to fundamental rights and freedoms, the Clause 2 rights and freedoms, for example the mobility rights; and a second, more stringent test, which should apply to legal rights, which can only be taken away according to our proposal in time of public emergency which threatens the life of the nation or any part thereof and there would have to be a statement forwarded to Parliament and Parliament would have to vote upon it and there could only be derogation to the extent strictly required under the provisions of proposed emergency legislation.

That would be the case with legal rights and we would exempt a number of legal rights from that possibility of derogation.

I would like to give one reason for the distinction. The proposal by the Government deals with the words “proclaimed by law”. It has been very clearly stated that “proclaimed by law” is not restricted to statute law, but can also apply to common law as evolved by the courts, and would also include regulations.

Mr. Chairman, in the case of, for example, the War Measures Act, what many people are not aware of is that after having proclaimed the War Measures Act, the government can go in some cases up to a year without having to report back to Parliament.

Surely, when we are dealing with a War Measures Act, which it has been suggested is going to remain in full force and effect, not challengeable in any way by this Charter of Rights,

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surely there should ,be some restriction whereby the government would be forced to come back to Parliament at the earliest possible opportunity-and I repeat that: the earliest possible opportunity-and seek Parliament’s approval for the derogation of any legal rights which may exist.

Now, that is not required, as I say, under the War Measures Act at the present time.

If the House is not in session, the government can proclaim a state of emergency, whether or not it exists; there is no requirement to call Parliament back into session. So that is an additional reason for the proposed amendment contained in Clause 30.

Finally, Mr. Chairman, I have indicated a concern that there should be and in fact are some fundamental rights and freedoms which at no time should be derogable.

As I have indicated, witness after witness appeared before this Committee to make that point. I believe we, as a Committee, should heed those concerns.

I am not aware of any witness whatsoever who recommended that all rights and freedoms contained in the proposed Charter of Rights should be subject to derogation, even on a demonstrable justifiability test.

I have referred to the 1978 report of the MacGuiganLamontagne Committee which made that point as well, and I would like also to draw to the attention of members of this Committee the recommendations of the Government of Canada in February, 1979, which accepted that principle, that there were certain fundamental rights and freedoms which could never be derogated. The July 1980 statement, the recommendation of the federal government at that time, recognized very clearly that there were certain fundamental rights and freedoms which were so important that they could never be derogated from.

The question is: why is the government stepping back from this very sensible suggestion-a suggestion which is in line with the provisions of the International Covenant on Civil and Political Rights?

Mr. Chairman, I will conclude by saying that the proposed amendment, which I hope will be seriously considered by members of the Committee, would attempt to meet three basic concerns: it would give an affirmative statement in Clause I; it would set out the fact that there are certain rights which could never be derogated; and it would establish two different tests where appropriate for the different clauses of the Charter.

Thank you very much, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you.

Mr. Epp, on the amendment.

Mr. Epp: Thank you, Mr. Chairman.

This amendment causes me some difficulty. I would like to spell out why-not amendment in the words that Mr. Robinson wants to add. There are two concepts at work here, and I know that is why he referred to Clause 30. There are two concepts: one is the need to express in the constitution the equality of men and women. I support that wholeheartedly. I think members would generally.

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But in order to make that point, Mr. Robinson then deletes the limitations clause.

I am also for a parliamentary system; I am also for reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society, and for a democratic society. Yet, you eliminate all of those to put in another-I suppose I can call it “right”, though “recognition of equality” might be a better way of putting it; and when I look at Mr. Robinson’s Clause 30-and with due respect, I am not trying to bootleg back Clause 30 in-but when we get to Clause 30, would that satisfy my problem? Would that rectify my problem? No, it does not; because I do not agree in total with the amendment to Clause 30 either in terms of the limitations.

That is why there is the difficulty on that basis that we face, Mr. Chairman, because I am giving this some thought now while I am sitting here; and I do not think some of these concepts should be dealt with here that cavalierly.

So what I will be doing, I want to tell Mr. Robinson, while I support the addition of the words, I have difficulty with the deletion of the words and his substitution in Section 30 and so I will, Mr. Chairman, after you have finished the process, I will move that we stand this clause until Mr. Robinson has had an opportunity to bring forward his proposal in Clause 30.

The Joint Chairman (Senator Hays): Senator Roblin.

Senator Roblin: Mr. Chairman, I am a little bit confused by what Mr. Robinson has told us because I do not quite follow the line of argument that he has being giving us.

I am trying to find out what the amendment actually consists of. As I look at the written paper in front of me, it says that you add immediately, after the,end of line 3, the words “and the equal right of males and females to the enjoyment of those rights and freedoms”, but it doeii not say what you do with the rest of the sentence.

Now, I take it from what he has been saying to us that he deletes the rest of the sentence but that is not what the amendment says and I would like to know what the facts are before I go any farther.

Mr. Robinson: That is correct.

Senator Roblin: He tells me that it is correct so the clause as amended, if this amendment were accepted, would then read as follows:

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

Mr. Robinson: Right.

Senator Roblin: And any suggestion of a reasonable limitation prescribed by law that can be demonstrably justified IS disgarded.

Mr. Robinson: That is Section 30.

Senator Roblin: But in the amendment that we have in front of us, and that is all I am going to address myself to at the

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moment, that is what it actually would look like if we were to adopt your amendment. Well, I think it does cause some problems.

Mr. Nystrom: Excuse me, Mr. Chairman, on a point of order, I would like to suggest that we accept what Mr. Epp has said, that we stand this. Mr. Epp has said when he was speaking, if I can say a few words on the amendment, that what Mr. Robinson is doing here is deleting the limitation clausee and that, Mr. Chairman, is not the case and that is why we made the argument that we are going to be adding and propositjg our own limitation clause, Clause 30, and we outlined what we think is the best way of doing that, and if you allow me a few minutes to speak, Mr. Chairman, I wanted to elaborate for a second on that and to say to you that is why we thought we had to deal with the two of them at the same time, because we are not eliminating a limitation clause.

We made it very, very clear to this Committee and in arguments with the Minister the other day that we thought the limitation clause should not come at the beginning, that there should be a positive affirmation of our rights in the beginning of the Charter, and that at the end of the Charter, on Clause 30, we should talk about what limitations if any there are to be to the rights and freedoms contained in the Charter.

Now, Mr. Chairman, I think that the wording as outlined by my colleague is an appropriate wording and I cannot help but think back to Mr. Robert Stanfield, the national Leader of the Conservative Party, talking about one of the regrets he had about a decision made in politics was the way he voted during the war measures crisis and I say that as one of the people that was in the House back in 1970 when we had a vote on the War Measures Act in Parliament, as one of the 16 members that voted against the invocation of the War Measures Act, that we need some restraints, that we need some definition of emergency as more precise in the laws of this land and I am sure that Mr. Stanfield would support me.

I remember the speeches being made at the time by Mr. David MacDonald and that is why, Mr. Chairman, it is important that we not look at the precise wording changes for Clause 1 in isolation and we why say we have to deal with Clause I and Clause 30 at the same time, and why Mr. Epp’s suggestion of standing the clause is I think a vr.ry, very sensible one.

In Clause 30, for example, we are saying that to proclaim an emergency you need the support of at least two thirds of the members of Parliament who are present and ‘voting, and that, Mr. Chairman, I think is something that is very wise. It means a government party in almost every situation since Confederation will not have two thirds of the members within their own caucus if they have to count on members of opposition caucuses, perhaps of both opposition parties, and if they can convince the opposition parties, Mr. Chairman, that there is a genuine emergency, then perhaps there is. So we have that type of limitation.

We are talking about a limitation clause and what Mr. Epp said is not the case, we are not deleting in its entirety the limitation clause, we are putting it in a different place, in a place that we think is better and we are substituting in Clause

[Page 37]

I some of the proposed wording with a new wording that affirms the equality of males and females, and we have a member of this Committee who has spoken out very effectively and very forcefully for children’s rights in Jim McGrath and I think that following his advice we have to make sure we are not just speaking about men and women but we are talking about children as well, and that is covered by the phraseology “males and females”.

So I would like to urge on you, Mr. Chairman, that we accept the recommendation made by Mr. Epp that we stand this clause until we have a chance to deal with Clause 30 and give it some more thought.

Senator Roblin: Mr. Chairman, during the interval perhaps we could ask the mover of this amendment to rewrite it so that it accurately reflects what he is trying to get us to do, because it certainly does not reflect that at the present time, and that would help us to be sure of exactly what we are dealing with.

The Joint Chairman (Senator Hays): Senator Austin. Senator Austin: Well, Mr. Chairman, as to the point of procedure, I would suggest that if the New Democratic Party and the Conservatives wish to have the New Democratic Party amendment that is now before us stood for a short time, perhaps we could stand it until 3:30 p.m. and then come back to it, sort it out as Senator Roblin has just said.

On the question of dealing with a proposed amendment to Clause 30 at this particular time, I do agree …

The Joint Chairman (Senator Hays): We have explored this pretty thoroughly and I should like to call for the vote now and I should like to do that, Senator Austin.

You had one interjection, Senator-! keep putting you m the Senate, I am sorry about that, Mr. Epp.

An bon. Member: A lot of people want to do that.

Mr. Epp: While that sentiment might be welcome, I am sure that the Senate would not necessarily feel that they had gained, but the House might have.

Mr. Chairman, what I would want to do is accept Senator Austin’s point of view and I would move that the amendment and Clause I be stood until 3:30p.m. today.

The Joint Chairman (Senator Hays): What is the feeling of the Committee?

Senator Austin: Agreed.

The Joint Chairman (Senator Hays): Is it agreed?

Senator Austin: That we proceed with Clause 2 and come back and finish Clause I at 3:30p.m. this afternoon.

Mr. Mackasey: Well, I just hope, Mr. Chairman, in our being out of step that we are not setting a precedent because we will be here until Labour Day.

Mr. Epp: Which year was that, Bryce?

Mr. Mackasey: Right.

The Joint Chairman (Senator Hays): The Chair is always in the hands of the Committee. Is there any other observation that Committee members should like to make

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Senator Asselin: Let us proceed with Clause 2.

Clause I allowed to stand.

On Clause 2-Fundamental freedoms

The Joint Chairman (Senator Hays): We have to have a mover of Clause 2 and I go to Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): I am sorry, my Clerk tells me that it is before the Committee and that we call on Mr. Nystrom.

Proceed, Mr. Nystrom.

Mr. Nystrom: Mr. Chairman, am I correct in hearing you that we do not deal with the government amendment first, because there is a government amendment on Clause 2? If you notice in the original draft we had Clause 2(a), Clause 2(b), and Clause 2(c), and the government, under Mr. Chretien’s name, tabled an amendment which is a new Clause 2(d) which reads:

(d) freedom of association.

And if I am not mistaken perhaps we should be dealing with the government amendment first.

The Joint Chairman (Mr. Joyal): We have already suggested yesterday and in previous days that we should deal with the amendments in order, and the first amendment that we have is an amendment proposed by the New Democratic Party addressed to the very first word of the clause, so the Chair does not see why we should go to the end first and them come back to the beginning.

I think we should deal with the amendments in logical order, that is why the Chair has called the amendment proposed by the New Democratic Party.

Mr. Nystrom: Fine.

The Joint Chairman (Senator Hays): Are you dealing with the amendment, Mr. Robinson?

Mr. Robinson: Yes, Mr. Chairman, dealing with the amendment, apparently the Minister does not have a copy. I do not know if the honourable members have.

The Joint Chairman (Senator Hays): Have they been circulated, Mr. Robinson?

Mr. Robinson: They have been circulated, Mr. Chairman, yes.

The Joint Chairman (Mr. Joyal): I understand, honourable David Crombie, that they are presently circulated if you have not already got them in your hands?

Mr. Crombie: My question was otherwise, Mr. Chairman.

The Joint Chairman (Senator Hays): What is your question?

Mr. Crombie: The question is: is this the only amendment that the New Democratic Party is bringing forward on this clause?

The Joint Chairman (Senator Hays): Is that right, Mr. Robinson?

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Mr. Robinson: Mr. Chairman, there is a second page which has been circulated, in English and French, and I hope Mr. Crombie has a copy of that.

Mr. Crombie: I feel like a wallpaper salesman here, Mr. Chairman.

Mr. McGrath: I feel sorry for the people out there because they are going to turn us off and start looking at Another World if this keeps up. It really must be very, very confusing.

The Joint Chairman (Senator Hays): Well, it is very confusion to the Chair and I. am sure it confusing to all the honourable members and it seems to me, Mr. Robinson and Mr. Nystrom, you have to get your amendments before the Committee before you speak on them.

Mr. Robinson: Mr. Chairman, the amendments have been before the Committee for some time on Clause 2.

The Joint Chairman (Senator Hays): Well, there are additional amendments.

Yes, Mr. Epp.

Mr. Epp: Mr. Chairman, in order to facilitate this whole operation, I do not think it is being done very professionally and I do not think we are being well served. Could it be possible, and I am not saying the Clerks should have done this before because they did not have the opportunity, would it be possible for the Clerks to have prepared for us by Monday at the latest a summary of the government’s original proposal, the government’s amendments, the amendments that we have put forward and the New Democratic Party amendments? They are not there, Mr. Bockstael, with all respect.

Our amendments, the government amendments and the New Democratic party amendments on one proposal, in other words, that we have that before us, otherwise we are going to have a blizzard of paper and we will not know where we are going. We are being snowed right now.

The Joint Chairman (Senator Hays): We will look into that, Mr. Epp, and we will report back to the Committee.

Go ahead, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

The first amendment we are dealing with on Clause 2, and I hope that honourable members do have the proposed amendment before then, is to change the word “everyone” to the words “every person”.

This is an amendment, Mr. Chairman, which was proposed in particular by the National Association of Women and the Law, the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women, and the Canadian Federation of Business and Professional Women’s Associations. All of these organizations, Mr. Chairman, all of them concerned particularly with the rights of women in Canadian society, indicated that because of the kind of jurisprudence which presently exists on the subject of the definition of person, that they believed that it was appropriate that this should be reflected in the proposed Charter of Rights, and I will certainly concur in that assessment, that there should be no problem, I would hope that honourable members

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would have no difficulty in accepting this proposed amendment.

As I say, I am sure the honourable members have considered the representations which have been made by, as I say, in particular a number of the women’s groups. I would like to quote from one of them and that is the Canadian Advisory Council on the Status of Women on this particular point.

They say at page 24, they ask that instead of the words “everyone has” or “chacuna”, the French version, that it should read “every person” or “toute personne”, in French, Mr. Chairman, and they ask for that change, as I say, to reflect the existing jurisprudence and to remove any doubt whatsoever that we are dealing with persons as such and, as I say, I wait with the interest the response of the government on this.

There is one other representation which perhaps I could just draw to the attention of honourable members and that is from the National Association of Women and the Law, Mr. Chairman, from their brief, just to quote briefly on this section and then conclude, they have indicated their concern with the formulation “everyone” as follows, and they talk about the concept of personhood;

We are concerned about possible problems of interpretation arising from the use of the word “everyone” throughout the proposed Charter. While the terms “person” and “individual” have been defined in successive definitions, the meaning of the word “everyone” has not yet been settled.

There is still confusion about what exactly that means, Mr. Chairman, and this could add to future litigation.

Finally, Mr. Chairman, on this point I would just draw to the attention of members the 1978 Joint Committee recommendations on this subject chaired by the Honourable Senator Lamontagne and Mr. MacGuigan, who also recommended the use of the word “person”, pointing out, and I am quoting from their report:

We believe it is the human person that is the proper subject of rights and freedoms.

So, Mr. Chairman, as I say, I hope we will respond to the concerns that have been addressed to us by these major national women’s organizations and recognize that we are talking indeed about persons, about a concept which has been judicially defined.

Thank you, Mr. Chairman.

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

Mr. Hawkes.

Mr. Hawkes: Mr. Chairman, could I ask the Minister about government intent as it relates to this motion. You have a choice, I think, between the words “everyone”, “every person”, and “every individual”, and if we look at the government interpretation in relationship to Clause 15, they are suggesting that the words “every individual” are required to make it clear to the courts in future that we are talking about individuals, we are talking about people.

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I think that comes about because in law there is some possibility that the words “everyone” or the words “every person” can refer to artificially created bodies such as corporations, such as Imperial Oil, Shell Oil, and that by using the words “every person”, is there any possibility in law, according to the technical advice that you get, that we in fact are conferring these fundamental freedoms on corporate bodies rather than individuals?

Is that a possibility technically and what is the government’s intention in this particular clause?

Mr. Kaplan: The legal advice on which the government is operating is that there is no difference among any of those three alternatives, that the use of one or the other or the third would make no difference in the rights and freedoms that are to be provided in the constitution, and on that basis we have no objection to the change. It seems to us to be dancing on the head of a pin.

Mr. Hawkes: Mr. Chairman, could I just read the interpretation comments on the Minister of Justice when he put forward some amendments to Clause 15 on the equality rights and I would like to read those into the record and ask whether or not we are getting different advice from different people within Justice.

It says the word “everyone” would be replaced by the words “every individual” to make it clear that this right would apply to natural persons only.

Now, if that is the logic for Clause 15 from the Minister of Justice, then you are telling us that it is the government’s intention to leave it unclear in Clause 2, when we are dealing with fundamental freedoms. Is that the interpretation, you do not want it clear that it applies to individuals; you do want it left with the possibility at least that these fundamental freedoms would apply to corporations?

Mr. Kaplan: We think it is clear with either form for the purpose of Clause 2 that human persons are intended and are covered by any of those formulations. We will talk about Clause 15 when we come to it, if you like.

Mr. Hawkes: I beg your pardon?

Mr. Kaplan: We will talk about Clause 15 when we come to it, but we believe that the context makes it clear whichever of those words are used, that human persons are intended to be covered.

Mr. Hawkes: Then your advice to us, on behalf of the government, is to ignore the explanatory comments that we will find in relationship to Clause 15?

Mr. Kaplan: That is very serious misrepresentation of what I said.

Mr. Hawkes: I am sorry, it is not an intended misrepresentation.

Mr. Kaplan: I resent that. I am not talking about Clause 15; I am talking about Clause 2.

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If the Chairman wants to call Clause 15, I would be prepared to discuss with you how the context can affect the interpretation of any of those three words, but in this context we are of the view that it does not make any difference and I do not want to comment on the procedure of the Committee, but I think our position will be, where things do not make any difference, we are prepared to be very agreeable for the sake of progress.

I will not comment on the procedure but I am astonished at the amount of time that is being spent discussing a distinction that has no difference.

Mr. Hawkes, I have nothing more to say about it. It is a distinction that does not make any difference. You can argue about which is clearer and which is not clearer but it does not make any difference and that is why we are prepared to go along with a recommendation that seems to make a great deal of difference to the NDP but does not make any difference in law.

Mr. Hawkes: Well, I understand that. I understand that.

Mr. Kaplan: And that is why we are prepared to go along with this because we do not think it makes any difference.

Mr. Hawkes: Mr. Minister, do we have statute’ law in Canada in the formation of bodies we call corporations, provincial laws, federal laws that start with sets of words that say that this corporation will have the status of a person? Do we have laws of that kind?

Mr. Kaplan: That is a principle of law. I do not think it is an actual statutory formulation but for many purposes corporations are viewed as persons.

Mr. Hawkes: Does it not therefore follow that if we say “every person”, that a lawyer could argue in court that these freedoms would apply to those kinds of corporate bodies? There is no possibility of that argument being persuasive in a court of law?

The Joint Chairman (Senator Hays): Senator Roblin.

Senator Roblin: On the same point that Mr. Hawkes was referring to, I am totally confused because I must say that my first thought would be that “everyone” and “every person” and “every individual” if not meaning exactly the same thing, were pretty close to it. However, what disturbs me is that in the equality rights clause which certainly is closely related to fundamental freedoms, we find that the word “everyone” is not a good word and we should use the expression “every individual”. The Minister says he can explain that. Would he tell me why “everyone”, “every person” and “every individual” means the same thing for fundamental freedoms but apparently does not mean the same thing for equality rights. I think I may see some lines of argument there but I wanted to know what he thought about it.

Mr. Kaplan: The rights in Clause 15 are of a nature that do not apply to nonhuman persons. Discrimination on the basis of age of a corporation is not something that Clause 15 would protect.

[Page 43]

I do not have anything more to say about it. The government is satisfied for the purpose of voting on this clause, with any of those alternatives. So what is the point of asking further for my views.

Senator Roblin: Well, the Minister can decline to discuss the matter if he wishes. I certainly do not object.

Mr. Kaplan: Well, I do not have anything more useful to say.

Senator Roblin: Very good. He has got nothing more useful to say. I must say that he is underestimating himself. I am sure he has got something more interesting to say, and I will protect myself with the remark that I quite agree that equality rights do not pertain to artificial persons such as a corporation, but neither, I suspect, do fundamental freedoms. So it seems to me that the argument would be the same in both cases.

However, the Minister said he will not talk about it anymore so I guess I should be quiet, too.

The Joint Chairman (Senator Hays): Thank you, Senator Roblin.

Mr. Epp.

Mr. Epp: Mr. Chairman, I fundamentally oppose the change, and the Minister might feel, from a point of jurisprudence, that “everyone”, “every individual” and “every person” are generally interchangeable. I just do not accept that.

Mr. Chairman, I believe that here the abortion question comes to the fore and the Minister should be one that is aware of it. The Criminal Code clearly spells out that a person is a person when that person is outside the mother’s womb. If you change it to “every person”, you are going to get yourself caught right in the middle of that question, that abortion question, and that is why that amendment is not acceptable. That is why, for example, if you take a look at our amendments, we moved an amendment, for instance, that on matters of conscience, and this goes beyond parties and politics, Mr. Chairman, there are members on both sides of this table in the House, in the Senate, who have different points of view both on abortion and capital punishment and very fundamentally hold that that is a question of conscience and that should not be dealt with by the courts but should be dealt with by elected representatives, that the people have a right to influence those elected representatives.

For us now to get involved in an issue which could be similar to the United States Supreme Court decision, the “every person” now would allow it because of virtue of the Criminal Code and it is that that is fundamental here. While Mr. Robinson might have views that it is a better word because of his views on abortion, that is why it is a better word, as I interpret it, and I am definitely opposed to it and that is the fundamental question here. I would not think that the Minister, who should know the Criminal Code backwards and forwards, would not accept it either with indifference or simply without any care.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.

Mr. Crombie?

[Page 44]

Mr. Kaplan: Mr. Chairman, if I might reply to Mr. Epp.

I am aware of that contentious question of whether the use of the word “everyone” or “every person” would prejudge or prejudice the question that Mr. Epp has raised, and that was a matter of concern to the government.

The conclusion we have drawn, and I will refer to the Criminal Code in a moment, but the conclusion that we have drawn is that either word is neutral on that question and that Parliament will have the responsibility, not the courts, determining the status of abortion.

Now let me draw the attention of the Committee to the Criminal Code, Section 206. It does not use the expression “person” or “everyone”. It uses the expression “human being” and defines it, and that is part of the reason, in addition to the general examination of jurisprudence, that produced the opinion on which we rely that either of those expressions is neutral.

Now, “individual” is somewhat more restrictive because “individual” excludes corporation, but “everyone” and “every person” leaves open the question of how abortions are viewed in law and that is a matter that should be determined, in the view of the government, by Parliament.

So I think you have just put a ted herring on the table, Mr. Epp.

The Joint Chairman (Senator Hays): Mr. Epp has a further question.

Mr. Epp: Mr. Chairman, then there is one question that flows from the Minister’s statement.

If he also is willing that Parliament should rule on these two issues, is he then saying that the government is supporting the amendment or gist of the amendment that we are putting forward in order that this question that is now before us will be dealt with by Parliament and Parliament only.

Mr. Kaplan: You can move amendments to the Charter of Rights and Freedoms, but the amendment that you are proposing or resisting has nothing to do with the question of abortion.

Mr. Epp: Sorry, Mr. Minister, you are not answering my question. I suggested an amendment the other night both on the question of abortion and capital punishment, which are both issues of conscience, that the Charter would not allow the courts to rule on either one of those issues, pro or con, and I am asking you, the explanation you are now giving to us in terms that both words are neutral, that whether you are then saying that that amendment or at least the same effect of an amendment as ours proposed, that you are accepting that, as government?

Mr. Kaplan: You are asking now if I am accepting the amendment that you are going to propose later?

An bon. Member: That makes it neutral.

Mr. Epp: That makes it neutral.

Mr. Kaplan: We think it is neutral.

Mr. Crombie: Except we are wondering whether it makes any difference …

[Page 45]

Mr. Kaplan: No, I have not expressed a view on the amendment you proposed except, I guess, to say that I think it is unnecessary.

Mr. Crombie: This is unnecessary but surely the time to discuss Mr. Epp’s motion is when we get to it.

The Joint Chairman (Senator Hays): Go ahead, Mr. Crombie.

Mr. Kaplan: I just wanted to make it clear for the purposes of this debate that the government views either of those expressions as equivalent, so the distinction has no difference.

The Joint Chairman (Senator Hays): Mr. Crombie, go ahead.

Mr. Kaplan: It just seemed to me faster and more forthcoming to accept it than to try and come up with a reason why it should be rejected.

The Joint Chairman (Senator Hays): Order, please. Go ahead, Mr. Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Two questions to the Minister. First of all, dealing with the question of abortion and the proposal from the New Democratic Party, if you would grant that there were some groups, and certainly there were two groups, if I remember, that came before this Committee who felt that a change to “person” would reduce their ability to influence law through Parliament, even though you think there is no difference, they thought there was. Why would you accept it if it does not change your position but you have knowledge that it will change their understanding, that is my question.

Mr. Kaplan: I suppose you are asking for the government’s view of the question and we formed a view and the view that we formed is to reject the argument that it makes a difference.

Then we come to a tactical question, having decided in real terms that it does not make any difference, is it better tactics to accept an amendment that is being put forward and is it more expeditious than to argue with it. I would have thought it would be more expeditious to accept it; now I am starting to wonder.

Mr. Crombie: Well, starting to wonder is at least hopeful.

Mr. Kaplan: But I think in that comment of yours you are wanting to insert a value to our position that it does not bear. We are not wanting to assist in diverting this important question of abortion or of capital punishment from Parliament.

Mr. Crombie: I perhaps should not pursue it because there are supposed to be questions at this point, but I am sure the Minister would agree, Mr. Chairman, that if a group of people have difficulty with a word that you use and they seriously and honestly think that it diminishes their ability to influence the course of law and you do not have any difficulty with either of two words, why would you not use the word that gives them the least difficulty, that is the question.

[Page 46]

Mr. Kaplan: Well, I am not accepting the legal opinion of those groups. I am accepting the legal opinion of the Department of Justice.

Mr. Crombie: But their impression, what they understand. They are not lawyers.

Mr. Kaplan: But what they are judging is how a court will interpret an expression and I am not taking their advice; I am taking the advice of the law officers of the Crown.

Mr. Crombie: Let me ask my second question.

Using the word “every person” brings in the connotation of a corporation. I gather there was a line of questioning dealing with economic corporations or financial corporations. I wondered if your comment in relation to those also dealt with religious corporations, religious bodies which are incorporated.

Mr. Kaplan: Yes.

Mr. Crombie: It does. Thank you.

The Joint Chairman (Senator Hays): Thank you, Mr. Crombie.

Mr. McGrath.

Mr. McGrath: Mr. Crombie really made my argument and made it much more effectively than perhaps I could, but I think it should be understood that the pro life groups who appeared before this Committee felt very strongly about this. It was the pith anct substance of the legal parts of their arguments, and I just want to make the point to my colleagues on the Committee who support the pro life position, that if it is neutral, if the government is neutral on this, surely that gives them a perfect out to vote against this amendment because this amendment really could open the door in terms of the courts and interpretation.

It is a great concern to those who are on the pro life side and I think that members opposite who share that point of view should remember that. If the government is neutral, then why lower the whips? Why not tell all members to vote freely on it?

Mr. Crombie: Mr. Chairman, this may be a question of privilege, not a heavy one, but it gives me some concern.

My question was not directed only to those who support a position of pro life. My concern was that I want the question of abortion to be dealt with by Parliament and whether or not one agrees with it, the question is who will decide it, Parliament or the courts.

Im my view, it should be Parliament, whether or not you agree or disagree with the pro life position.

The Joint Chairman (Senator Hays): Do you wish to comment, Mr. Minister?

Mr. Kaplan: I think that Mr. Crombie has put very well the position of the government that this is a matter which, in our view, the Charter does not touch and, therefore, does not put it

[Page 47]

within the competence of a court to determine whether an abortion or a nonabortion law is valid.

The Joint Chairman (Senator Hays): Miss Campbell.

Miss Campbell: I just wanted to reiterate that we are talking of the proposed Clause 2 which I think we are mixing up with Clause 7 to begin with, but secondly, the interpretation of “everyone” and “every person” equates itself in the interpretation of the Criminal Code which is an Act of Parliament and can be changed by Parliament if and when anybody wants to.

The Joint Chairman (Senator Hays): Mr. Minister?

Mr. Kaplan: I do not think there was a question directed to me.

The Joint Chairman (Senator Hays): Mr. Robinson?

Mr. Robinson: Mr. Chairman, just a very brief comment on the statement by Mr. Crombie and also by Mr. Epp and that is this: that to refuse to deal with an amendment on the basis of the impression of one or two groups that have appeared before us, even though those groups may be important is surely not an appropriate way to deal with an important amendment. The Joint Chairman (Senator Hays): Order, please. I am sorry, Mr. Robinson, Mr. Bockstael has a question that he would like to ask before you close the debate.

Mr. Robinson: Well, I did not intend to close the debate.

The Joint Chairman (Senator Hays): Then I ask Mr. Bockstael.

Mr. Bockstael: Mr. Chairman, I would like to put a question to the Minister.

The original submission by the government in Clause 2, they used the word “everyone” and in its own amendments uses the word “everyone” in Clause 2. Now, if we are going to change “everyone” in Clause 2 to “every person”, does it follow that we are going to go down to Clause 7 which has the right to life, and change “everyone” there to “every person”?

During the discussion, I made the point that International Human Rights uses the word “everyone” 27 times at the start of their wording, and we had absolute representation and an advocate, a proabortionist or one who is favouring abortion or that the government should allow it, is the member who just spoke and said he acknowledges that those who came here said that they wanted “every person” because that would clearly delineate to them that a fetus was not a person. Now they tell us there are precedents in the court for both ways, that a fetus was interpreted as a person and in another case it was not. You say it does not make any difference.

My question is then, why do we have to adopt an amendment from the opposition when we have put in our own initially. Now why should we be changing it for them, and does it have any effect on Clause 7, that is my main point?

Mr. Kaplan: I think it would be logical to use one formulation or the other throughout the act wherever the same sense is intended. So my position on Clause 7 is the same as the position taken on Clause 2.

[Page 48]

I think Mr. Bockstael is talking about a strategy for facilitating the work of the Committee, whether it is better to resist amendments that do not make a difference or to agree with amendments that do not make a difference. What I want to assure the Committee is that there is no card up the government’s sleeve on this, that our view is that it is truly a matter of indifference as between those two expressions, which is used, that neither of them shifts any responsibility away from Parliament to deal with that question.

Clause 7, although it appears to address the question of the right of termination of life or existence of life, I wanted members to note that it is really a due process provision and the right that it deals with is the right to a fair procedure for the determination of other rights and interests. So it is less relevant to the issues that we are discussing now than Clause 2 is.

Mr. Mackasey: Mr. Chairman, may I?

The Joint Chairman (Senator Hays): Yes.

Mr. Mackasey: I have been persuaded by the Minister’s argument, but I must say to the Minister that the controversial subject of abortion was very well aired here and I would suggest in light of the fact, and I am persuaded by your argument that it really does not give a damn as far as you are concerned which expression to use, then I think the logical solution is to let this Committee on this issue have a free vote, and this will accomplish what you suggested should be accomplished, expediting this thing and getting on with something else.

The Joint Chairman (Senator Hays): Yes, Mr. Irwin?

Mr. Irwin: I have canvassed the members. We are satisfied that it does not make any difference. This is the opinion of the department.

However, the point is being made by the opposition that if we support this, we will be tainted as proabortionists which we are not. Consequently, the Liberal side of this House can vote in conscience and their own feelings. There is no party line on this.

The Joint Chairman (Senator Hays): Mr. Robinson?

Mr. Robinson: Thank you, Mr. Chairman. I would just like to conclude by referring, as I was starting to refer, to an argument that was made by Mr. Crombie, in particular, that there were some groups that came before us that had certain impressions and that was the word that he used, about the effect that this clause might have if it were retained or if it were changed to “every person”, as opposed to leaving it as “everyone”. Mr. Chairman, I would simply like to say that there were other groups, national groups, 4 other national women’s groups, far more representative, I would suggest, than certain of the other groups which have been referred to. These are national groups, the National Action Committee on the Status of Women, the Canadian Advisory Council on the Status of Women, these groups came before us and said exactly the opposite, that they had concerns about the way that “everyone” might be interpreted. That was their impression.

[Page 49]

Now, if we are to adopt the logic of Mr. Crombie, why should the impressions of the two or three groups that he has referred to be any more persuasive on the Minister than the impressions of the national women’s organizations involved plus the decision which has been given, the interpretation which has been given, after careful consideration by the law officers of the Crown?

The Joint Chairman (Senator Hays): I believe you wanted to put a question, Mr. McGrath?

Mr. McGrath: Mr. Chairman, I just wanted to ask Mr. Robinson if he was speaking for all the members of his caucus. My recollection is that I know of at least one or two who share the position I advocate and the pro life side of this question.

I noticed that Mr. Ogle is one I know of-they have used Mr. Ogle in support to speak on one side on the question of our preamble to Clause 1: and now, of course, when they want to sneak in through the back door, they use Mr. Robinson. I want to know if he is speaking for his party.

Mr. Nystrom: Mr. Chairman, on a point of order.

The Joint Chairman (Senator Hays): Yes.

Mr. Nystrom: I would ask Mr. McGrath, to consider withdrawing his remarks. He is imputing motives to our party in saying that we are sneaking something in by the back door; he is also imputing motives on our caucus on whether or not Mr. Robinson was speaking on behalf of the caucus.

We are moving here, Mr. Chairman, amendments which have been approved by the caucus. They are caucus amendments.

I do not question whether or not Mr. McGrath, when he moves an amendment, is speaking on behalf of his caucus. I do not imput motives to Mr. McGrath.

I think that this kind of comment is not in keeping with the conduct that we have seen before this Committee in the last two or three months.

I would like to ~ay that I deeply resent it and I would like to ask you to have Mr. McGrath consider withdrawing his comment that he has made before this Committee, reflecting upon myself, Mr. Robinson and any other member of the Committee who is going to be moving amendments.

The Joint Chairman (Senator Hays): Senator Goldenberg on the same point of order.

Senator Goldenberg: No, Mr. Chairman.

Mr. Crombie: On a point of order, Mr. Chairman.

The Joint Chairman (Senator Hays): On the same point of order, Mr. Crombie?

Mr. Crombie: I do not know if it is on the same point of order concerning the request to Mr. McGrath to withdraw his comment. But it is on the remarks made by Mr. Robinson in which he indicated that I had said certain things. I would like to make one or two points and I think it would take me a maximum of 30 seconds.

[Page 50]

The Joint Chairman (Senator Hays): Go ahead.

Mr. Crombie: Mr. Chairman, I have dealt with the Minister’s comment that the two words would be neutral in his view. It is in that context …

Mr. Kaplan: They are equivalent.

Mr. Crombie: In that context I raised the question that there were groups who had different impressions of what it meant.

I was not, as Mr. Robinson implied, saying that there is this set of groups there, and this set of groups here and would the Minister please choose one and have that weigh on his opinion.

My concern-and I think this must be said, because I was here throughout the whole of those hearings when those groups were here: the Civil Liberties Association of Canada-I asked them the same question: what difference does it make? Their opinion was that there is a line of cases which would give, in the American experience, both.

Mr. Kaplan: That is right.

Mr. Crombie: That is why it was important that we not give any colour of legitimacy to either side of the question in the use of the words.

That is why it was important that there be no change which would give that colour of legitimacy; that the question should be dealt with not by the courts, but by Parliament. Mr. Robinson, that was the issue-and still is!

The Joint Chairman (Senator Hays): Thank you very much, Mr. Crombie.

In connection with Mr. Nystrom’s point of order, probably Mr. McGrath would like to respond.

Mr. McGrath: Before you rule, Mr. Chairman, if you were in fact to rule that I did say something which was unparliamentary, then I would in fact withdraw without question.

But I did not impute motives. I asked Mr. Robinson a question. I asked him if he was speaking for all members of his caucus. I see nothing unparliamentary about that.

I suggested to him that he was trying to sneak in-and I did use the word: I could have used “smuggle in” or “bootleg in”-a word which caused a great deal of concern to at least three witnesses who appeared before this Committee.

If there is anything unparliamentary about that and you so rule, then I would certainly withdraw, Mr. Chairman, so that we could get on with the vote.

The Joint Chairman (Senator Hayes): Maybe you could use the word “accommodate”.

Mr. Nystrom: Mr. Chairman, it is a little more serious than that. He made the statement that he knew at least one member of the caucus who did not agree. Mr. Chairman, I would like to say that when he does that he is reflecting on us and imputing motives, because he was talking about sneaking something in.

[Page 51]

It is not true that there is some other caucus which does not agree with the change of the wording. I think it is rather serious when a member of the Committee would reflect on another Party and on their caucus.

The Joint Chairman (Senator Hays): I think Mr. McGrath did handle it in the way you wished.

Miss Campbell.

Miss Campbell: I would just like to go back. I did interrupt before on this clause. I reminded the Committee that we were on Clause 2, one of the reasons why I like “every person” in Clause 2, is that “person” has been interpreted specifically to include corporations and companies.

I tend to feel that “person” in Clause 2 will be justified as really extending it further there.

Now whether or not we want to debate Clause 7 and vote through the amendments to get to Clause 7-I think that is what we are talking about; the debate has certainly gone to Clause 7 in another fashion, has clouded this issue, probably, for the public-but on Clause 2, where you are giving basic freedoms, we do have an interpretation that “person” does extend to corporations.

Over and above that, you have the Criminal Code; and in the Interpretation Act, at page 4 under the interpretation of the Criminal Code, it says …

The Joint Chairman (Senator Hays): Miss Campbell, I thought it was over with Mr. Robinson-I would like to call the vote.

Mr. Irwin: On a point of order, Mr. Chairman. The Joint Chairman (Senator Hays): Yes.

Mr. Irwin: Mr. Chairman, this is a very serious matter and should not be precipitated by a fast vote.

Senator Asselin: We will be sitting until the summer!

Mr. Irwin: We would like the consent of the Official Opposition to have the matter stand down until later in the afternoon so that we could have an opportunity of discussing it on our side.

In view of the importance of the subject, I am sure that is not an unreasonable request.

The Joint Chairman (Senator Hays): Senator Austin.

Mr. McGrath: Mr. Chairman, if I may …

The Joint Chairman (Senator Hays): Order, please. Senator Austin.

Senator Austin: Mr. Chairman, we have an arrangement that Mr. Nystrom referred to yesterday.

Mr. McGrath: Mr. Chairman, surely I am entitled to respond before Senator Austin intervenes.

The Joint Chairman (Senator Hays): I have to recognize Senator Austin, and then I will recognize you, Mr. McGrath.

[Page 52]

Senator Austin: We have an arrangement that any member of this Committee can ask for a short stand of an item. Mr. Irwin refers to consent.

But, in fact, what I want to say is that we have an arrangement, Mr. McGrath, that a short stand is possible at the request of any member of the Committee. If that is what Mr. Irwin wants, the arrangement is that he can have it.

The Joint Chairman (Senator Hays): Mr. McGrath.

Mr. McGrath: Mr. Chairman, I recall hearing Mr. Irwin a few moments ago saying that as the result of canvassing some of his people and as a result of the abortion implications of this amendment, that it was going to be a free vote.

Well, if it is going to be a free vote, then why not proceed with it now? Surely, it is logical. It is not a party question.

I suggested we have had a good debate on it, and we should proceed.

The Joint Chairman (Senator Hays): If there is unanimous consent, among the Committee, I think I should call a vote on the motion.

Mr. Epp: Mr. Chairman, Mr. McGrath has made a very valid point. There are some difficulties here.

On the one hand, Liberal members have said there would be a free vote. I hesitate to raise this matter, but I have to-and I am not in any way doing it in order to impute any motives.

Frankly we fear, not the matter of standing. There is that arrangement. That is not what I am dealing with here. Maybe Mr. Mackasey, Mr. Austin or Mr. Irwin can come back and give me an answer.

We are concerned about the membership, because this is a free vote and because this membership has been part of the debate. What would the membership be like when that matter is brought back.

The Joint Chairman (Senator Hays): Mr. Corbin.

Mr. Corbin: I would like to allay Mr. Epp’s fears, and to say that we are prepared to have the vote at this time.

The Joint Chairman (Senator Hays): Are we agreed?

Some bon. Members: Agreed.

Mr. Irwin: Mr. Chairman.

The Joint Chairman (Senator Hays): Order, please.

Mr. Mackasey: Mr. Chairman, on a point of order.

The Joint Chairman (Senator Hays): Yes, on a point of order, Mr. Mackasey.

Mr. Mackasey: Before voting on a matter as fundamental and important as this, I would like to satisfy myself, and not to be told on a free vote whether to vote now or later by the Whip or anyone else.

[Page 53]

This is an important question that Mr. Epp has raised. It is a matter of conscience, and that is why we are making it a free vote. I want to be very sure.

The one point I would like, Mr. Epp, to have found outand this is why I appreciate postponing it-is really the point that Miss Campbell raised-and please hear me out on this; forget abortion for a moment.

Why are we using “everyone” in Clause 2 and using another expression in Clause 15? I would imagine I am looking at it largely from the point of view of the individual. The reason is-and perhaps lawyers understand it better than laymen such as myself-that when corporations become incorporated, they assume in many respects individual rights: you sue a corporation, and you do not sue the officers, et cetera. There is an important difference.

That is why “everyone” in the legal sense used by the Minister, and as Mr. Tasse has explained to me, has an entirely different connotation here for the moment.

“Everyone” here makes it clear that it goes beyond individuals and also includes legal corporations.

I am a little concerned. All I want to do is to satisfy my own mind between now and when we come back that, we do not unintentionally, in order to make our case on the proabortion aspect, do harm to corporations and strip them unintentionally of their rights under Clause 2.

Mr. Robinson: Mr. Mackasey, the position is …

Mr. Mackasey: Mr. Robinson, although I respect your views, I would rather get it from the proper quarter; I know you will be sitting up there one day as the Deputy Minister; and …

The Joint Chairman (Senator Hays): Thank you, Mr. Mackasey, on your point of order.

Mr. Irwin, may I suggest that you make a motion.

Mr. Irwin: No, I will make three points, Mr. Chairman. The first is-and I took the time to canvass our group, to listen to the importance of what you are saying, and yet you are not prepared to give us the time to go out and at least talk about it. That is the first point.

The second point is that it is now 12.05 p.m., and we are not legally constituted-! will call it 12 o’clock. That is the second point.

An bon. Member: What is the third point?

Mr. Irwin: The third point, Mr. Chairman, is that we have an agreement that if any member wants time to have this gone into-any important proposition that comes before this Committee- that member, as a matter of courtesy, is given that time. And you are not pushed up against the wall. Maybe you have the bolts now, because that is exactly what you are doing, and I am offended by that.

[Page 54]

We want to talk about it and deal with the matter intelligently. I have been here for three and a half months, and I am at least entitled to at least two hours to go over this.

Mr. McGrath: Mr. Chairman, the last person to intervene and suggest that we have the vote now is Mr. Irwin’s seatmate,

Mr. Corbin.

Do not direct all your wrath on us, Mr. Irwin. The second point I want to make is that if it is a free vote, why do you need the lunchtime to consult?

The Joint Chairman (Senator Hays): Order, please. May I call it 12 o’clock. This meeting is adjourned.

La seance est levee.

AFTERNOON SITTING

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

With unanimous consent we agreed this morning to go back to Clause 1 to deal with the amendment as moved by the New Democratic Party, I just want to draw the attention of the representatives of the New Democratic Party to solve a minor issue that was raised by the honourable Senator Duff Roblin, that in order to have that amendment acceptable at this point we would have to change the period that comes after the word “freedoms” by a comma, because we have already voted on the last section of Clause 1 and if we do not do so the Chair will not be in a position to accept the amendment, so with the consent of the representatives of the New Democratic Party we would make that correction and would be ready to go on with the vote.

Do we have the consent of the representatives of the New Democratic Party on that?

Mr. Robinson: That was to make it a period and delete the lines following that?

The Joint Chairman (Mr. Joyal): Exactly.

Mr. Robinson: Yes, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable Senator Roblin.

Senator Roblin: Would you be kind enough to read the motion as amended that we will be voting on?

The Joint Chairman (Mr. Joyal): So the motion as moved by the New Democratic Party would be

That Clause 1 of the proposed constitution act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

and the equal rights of males and females to the enjoyment of those rights and freedoms,

It is moved:

[Page 55]

that Clause I of the proposed Constitution Act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

and the equal right of males and females to the enjoyment of those rights and freedoms

Amendment negatived.

The Joint Chairman (Mr. Joyal): So I have to come back, then, to Clause I as amended.

On Clause !-Rights and Freedoms in Canada

Amendment agreed to.

Clause I as amended agreed to.

On Clause 2-Fundamental freedoms

The Joint Chairman (Mr. Joyal): We will come back to Clause 2 on the amendment as proposed by the New Democratic Party and I think I do not read it, it has been well understood by all honourable members this morning that it is a very simple amendment in terms of wording, substituting “everyone” by “every person” in the first line of Clause 2.

I have been requested to go on with a recorded vote on that.

Is it agreed?

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): D’accord.

I would like to invite, then, the Clerk of the Senate to call the vote, please.

Amendment negatived: Yeas, 2; Nays, 21.

The Joint Chairman (Mr. Joyal): I would like to invite now the honourable Jake Epp, I think that you wanted to propose that we discuss some amendments in preference to some others dealing with Clause 2.

The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

I have had a discussion with the Chair, one of our colleagues will have to leave later this afternoon and he will be proposing our amendments to Clause 2 and there was agreement, I believe, from the Chair that Mr. Crombie would be allowed to proceed at this time even though we had not completed all of the amendments of the New Democratic Party.

It is on Clause 2, the amendment we had proposed earlier.

Mr. Crombie: Thank you, Mr. Chairman.

On Clause 2 entitled fundamental freedoms, members of the Committee will note that there is (2), the preamble, (a), (b), (c) and (d), and we have for our amendment added an (e), so that the entire clause would read:

Everyone has the following fundamental freedoms:

(a) the freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of information;
(c) freedom of peaceful assembly enjoyment of those rights and freedoms,

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(d) freedom of association. And we have added (e):
(e) freedom from unreasonable interference with privacy, family, home, correspondence and enjoyment of property.
We therefore added an (e) section to Clause 2:
(e) freedom from unreasonable interference with privacy,
family, home, correspondence and enjoyment of property. Before I continue with my arguments, Mr. Chairman, I would like to ask the Senator, Senator Asselin if he would read the motion in French.

Le senateur Asselin: Alors, la motion en francais se lit comme suit. Il est propose:
Que la modification a l’article 2 du projet de Loi constitutionnelle de 1980 soit modifie par

a) substitution, a .association., de «association•, et par adjonction, apn!s l’alinea d) du projet de modification de l’article, de ce qui suit:

e) protection contre toute intervention abusive dans les domaines de la vie privee, de la famille, du domicile, de la correspondance et de la jouissance du droit de propriete
b) substitution, dans la version francaise pour correlation, a la ligne 6 et a la rubrique qui la precede, de ce qui suit:
libertes et protection fondamentales• chacun a les libertes et Ia protection fondamentales

Mr. Crombie: Thank you, senator.

Before I continue with the argument on the matter, Mr. Chairman, are there any questions on either the English or French versions?

Mr. Chairman, on a number of occasions as we were hearing witnesses and deputations over the past month, it seems, and I guess it is, and indeed other members of the Committee have indicated that there is a strong desire on the part of most people to, as we developed arguments with respect to specific rights, that we try as much as possible to conform to the Universal Declaration of Human Rights.

Now, firstly in support of the amendment which I have proposed on behalf of our party I would like to point out that the clauses dealing with the privacy, family, home, correspondence, you will find in Article 12 of the Universal Declaration of Human Rights on page 26.

You will also find with respect to certain aspects of that amendment, if you would look at the International Covenant on Civil and Political Rights, Article 17, page 27, it deals with those specific rights.

With respect to the latter part of the motion, the enjoyment of property, you will find that of course in the Diefenbaker Bill of Rights, you will also find it in Article 17 at page of the Universal Declaration of Human Rights.

I make that point to suggest, Mr. Chairman that for those who are anxious that the Canadian Charter Rights and Free-

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doms find themselves within the mainstream of international thinking with respect to rights and freedoms, that the wording that I have chosen is the wording you will find in those two international charters that I cite.

I would also like to point out, Mr. Chairman, that if you look at all the constitutions, and I have books of them back here, all the constitutions, you will find that each of the various freedoms which I have suggested in the motion are found in very specific constitutions of very specific countries.

For example, with respect to the freedom from unreasonable interference with the home, you will find that the constitutions of Australia, Belgium, West Germany, Ireland, Iceland, Italy, Leichtenstein, Luxembourg, the United States of America, that you will find in their particular constitution. With respect to freedom from unreasonable interference with respect to correspondence, you will find that in Austria, Belgium, West Germany, Italy, Leichtenstein and Luxembourg.

Now, with respect to family, I would like to emphasize that one because it did not do so well in Clause 1 and I am hoping it will do better in Clause 2. And for Clause 2, it is in a number of constitutions including the Province of Quebec, Clause 48, and in their own particular charter. The one which I choose to read to you is Ireland, only because of-perhaps for obvious reasons, Ireland’s constitution says the State recognizes the family as the natural primary and fundamental unit group of society. It is a moral institution possessing inalienal:le and inprescriptable rights antecedent and superior to all positive law.

And then it goes on in fact with a number of specific rights which flow from that general principle. I might add, parenthetically, Mr. Chairman, you will notice how neatly they travel from general principles to the specific rights, it is a custom the rest of the world has adopted, it is unfortunate perhaps that this country has not.

So I want to emphasize with respect to the family as well as the other rights which I note in our resolution, that it has found favour not only in international bodies but it has found favour with other countries in this world, particularly those countries which have been close to the history of our own traditions.

There may be one other matter and that is the use of the word “unreasonable”. I notice we have used “reasonable” and “unreasonable” a number of times. There are a number of definitions that one might use for “reasonable” or “reasonable men” as lawyers talk about reasonable persons.

The one which I think makes sense to me says a reasonable person is a person exercising those qualities of attention, knowledge, intelligence, judgment which society requires for its members for the protection of their own interests as well as the interests of others.

It sounds to me like the definition of a Tory, Mr. Chairman, but I am sure it is shared by others.

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At any rate, I cite that because it is a fair definition of a reasonable person and it seems to me that an unreasonable interference is the opposite of all of those virtues.

So, Mr. Chairman, unless there are specific questions those are the points I wish to make in support of our motion.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable David Crombie.

I would like to invite now Mr. Jean Lapierre followed by monsieur Robinson.

Mr. Lapierre.

Mr. Lapierre: I have been very interested by Mr. Crombie’s proposition.

Now, I understand quite well that his party retained a recommendation that the Canadian Council on Social Development made before our group on December 4, and it is the only group that did insist on the fact that we should conform to the International Declaration of Human Rights.

As far as his section is concerned, except the right to the enjoyment of property, it can be found, as he said, in the international documents, but we should mention that in those same international documents there is no section similar to Section 8 of our charter which deals with the right to be secure against unreasonable search and seizure.

Consequently, I think that the concerns of Mr. Crombie and of his party relating to privacy, family, home and correspondence are guaranteed by Section 8 which offers a fairly wide array of protections.

As far as the right to privacy, it is a fairly vague concept and I do not know if Mr. Crombie-! know that he did intensive researches at the library-has found a formal definition of privacy, but, to my knowledge and given the present notions of the law, it is a concept that is too vague and i11 defined. For this reason, we could wonder what kind of interpretation the courts would give to that concept.

Now, as far as the enjoyment of property is concerned, Mr. Crombie, I think this is a bit repetitious. Do you want that we also refer to the enjoyment of property at Section 7? In this case, I wonder where is your logic. Why do you insist twice on the right to property, why do you want to mention it at Section 2 and at Section 7?

You are asking twice for the same protection. I prefer the protection that Section 7 provides and which refers to the rule of natural justice and I am convinced that the government wi11 be more wi11ing to accept your amendment to Section 7 which fo11ows quite we11 the general thrust of the charter.

Now, this is about a11 I have to say on that subject, I do not think that our party wants to go too far as far as ill-defined notions are concerned and we think that the rights that Mr. Crombie wants so we11 protected are already protected by the

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dispositions actuelles de Ia charte plus certaines ameliorations qu’on amenera en cours de route.

Mr. Crombie: Can I respond to that, Mr. Chairman?

I think what I heard Mr. Lapierre say is that he would rather have the freedom to enjoy property in Clause 7 than in Clause 2.

You would support that?

Mr. Lapierre: Yes, the government is ready to consider that very …

Mr. Crombie: The government is ready?

Mr. Lapierre: That is what …

Mr. Crombie: Well, you speak for the government, Mr. Kaplan, and with respect, Mr. Lapierre does not.

Mr. Kaplan: What is the question?

Mr. Crombie: I am sorry. Mr. Chairman, can I direct a question to his Minister?

The Joint Chairman (Mr. Joyal): Certainly.

Mr. Crombie: You accept the comment made by Mr. Lapierre that the government would accept the right to enjoy property in Clause 7 as opposed to Clause 2?

Mr. Kaplan: If it is put forward by your party, yes.

Mr. Crombie: If it is put forward by the New Democratic Party it will not?

Mr. Kaplan: I wa~ saving that in case they asked.

Mr. Crombie: Well, Mr. Chairman, with unanimous consent of the Committee we would withdraw it in Clause 2 in favour of having it in Clause 7.

Mr. Lapierre: Good, we will be there at …

Mr. Crombie: And with thanks to Mr. Lapierre.

Mr. McGrath: What happened to you guys over lunch?

Mr. Lapierre: We thought a lot of you.

Mr. Crombie: Thank you very much, I appreciate that, Mr. Lapierre.

The Joint Chaiman (Mr. Joyal): What might happen, if I can use that symbol, you will remember that there is a very famous person who fell from his horse some time and saw the light, and maybe that is what happened.

Mr. Crombie: I have one follow up if I could, Mr. Chairman, with respect to the query made by Mr. Lapierre, and that is dealing with the first part. Am I to understand as well that Mr. Lapierre rejects the first part, that part dealing with privacy, family, home and correspondence, because it is not precise, is that …

Mr. Lapierre: I say that it is covered by Clause 8.

Mr. Crombie: You say that it is covered by Clause 8?

Mr. Lapierre: At large? Amended 8.

Mr. Epp: Amended 8.

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Mr. Crombie: I am sorry, Mr. Chairman, I have got paper all over the place. Where is the amended 8? Thank you very much. Oh, no, that is search and seizure.

Mr. Lapierre: Well, I think it would protect your home.

Mr. Crombie: Well, only from search and seizure.

Mr. Lapierre: Yes.

An bon. Member: What about arson.

Mr. Crombie: And my family, only search and seizure?

Mr. Lapierre: On search and seizure, yes.

Mr. Crombie: Let me understand that.

Mr. Kaplan: What other violations do you have in mind?

Mr. Crombie: Well, I did not have any in mind, it was the other people that I was worried about. That is why we wanted the protection.

Senator Austin: What happened on your side this afternoon?

Mr. Crombie: Mr. Chairman, I do not accept Mr. Lapierre’s argument but I think I probably am transgressing on the procedure of the Committee at this point. I would only leave the field by reminding the Committee and Mr. Lapierre that the recommendations in connection with this motion, dealing with the privacy, home, correspondence and family, were recommended to this Committee by the Federation of Civil Liberties and Human Rights Associations, the New Brunswick Human Rights Commission, the Canadian Council for Social Development and the Positive Action Committee.

I thought that there was sufficient wisdom in what they had to say so I just simply wanted the Committee to know, and Mr. Lapierre in particular, that I did not take these up all by myself. They not only have the support of almost every constitution in the western world, but there are four bodies that came before this Committee and expressly suggested it.

It may be vague to Mr. Lapierre but I think there are a number of people who would like to have a freedom that says they are protected particularly from government in relation to their own privacy, their family, their home and their mail, which is correspondence. The government has not done too well in the mail lately so we are not pushing that one, but I think privacy, family and home is certainly important.

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

Mr. Robinson: Thank you, Mr. Chairman.

I had intended to raise concerns with respect to the words “and enjoyment of property” and the context in which they were put forward by Mr. Crombie, and I think that the Minister has now made some of those remarks that I would have given and it is somewhat academic, and they will be dealt

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with at the appropriate time when an amendment is proposed to Clause 7, dealing with enjoyment of property. I do want to say, just for the record, however, that it is our position that we would support the amendment proposed by the Conservative Party without the words “and enjoyment of property”. I do not understand whether you are still putting it forward minus those words, Mr. Chairman.

Mr. Crombie: Mr. Chairman, to clarify, I have asked for the unanimous consent of the Committee, which was granted, I gather, to withdraw the right to property on the clear understanding that the government will support the right to enjoyment of property in Cluase 7. So the only thing that now remains is the part that you are willing to support.

Mr. Robinson: Thank you, Mr. Chairman.

That was my understanding and certainly I have no hesitation in saying that we a:re prepared to support this particular subamendment. The right to freedom from unreasonable interference with privacy has indeed been recognized and the government has committed itself to implementing this particular right by binding itself to the provisions of the International Covenant on Civil and Political Rights, article 17(1 ), of which provides, and I am quoting now:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.

So that is already binding upon provincial and federal governments, Mr. Chairman, and certainly we believe that that should be reflected in the proposed Charter of Rights.

I will also say in concluding, that we intend to propose ourselves an amendment to Clause 7, dealing specifically with the right to privacy without the additions which are proposed by Mr. Crombie and his party, and I would certainly hope that we would receive support on those at the appropriate time in any event.

Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Mr. Hawkes?

Mr. Hawkes: Mr. Chairman, I was just moved to comment on the basis of Mr. Lapierre’s assertion that the proposed amendment is covered off by Clause 8.

Earlier today, our attempt to put into this Charter of Rights the assertion that the family was important was denied by the government members opposite. I think it is important for a society to decide about its basic building blocks, and I think that in the Canadian experience, in our tradition, the family has been viewed in a very positive fashion. It is an important element of our society and if we are, in fact, putting forward a Charter of Rights, the purpose of which is to protect the individuals from the power of the state, then one of the problems which we have faced and which many witnesses have addressed is how do you balance off individual rights and collective rights and state rights.

I suggest to you that the collectivity called the family needs to be asserted strongly somewhere in the Charter, needs to be protected from interference by the state, needs to be protected perhaps from interference by individual rights, and that this is

[Page 63]

probably the most appropriate place in this Charter to enshrine that concept to give it validity in constitutional law.

I think the other elements, the privacy, the home and the correspondence are in some sense the tools that strengthen that family unit and therefore, in a kind of residual fashion, should go along with it, and I would urge the members opposite, if they need to caucus again and go and consult, that we stand it until such time as people are ready to vote on it. But I do not think we should dismiss it in a hurry and I do not think we should dismiss it lightly.

The Joint Chairman (Mr. Joyal): Seeing that there is no more questioning, I understand that honourable members are ready for the vote.

All those in favour of the amendments please raise their hands.

I am sorry, but I realize that there are two honourable members raising their hands who are not registered as full members of the Committee. Let me check again because I want to be very clear on that.

Everything has been cleared up and I do apologize, but you do understand that on a vote, the Chair has to be reassured that members are qualified.

Amendment negatived.

We proceed then with the next amendment, the one moved by the NDP and it is numbered N-3, Clause 2, page 3.

I would like to invite Mr. Robinson on behalf of the NDP party.

Mr. Robinson: Thank you, Mr. Chairman.

If honourable members have proposed amendment N-3 before them, I. will just read the proposed amendment. Mr. Chairman, if I may just get some guidance from the Chair. There has been a suggestion from some other members that perhaps we might dispense with the reading of the French version since there is simultaneous translation. I am in the hands of the Chair but certainly I am prepared to co-operate in that regard, if that is the desire, or the English, whichever it is initially read in.

Some bon. Members: Agreed.

Mr. Robinson: Thank you, Mr. Chairman.

The proposal is as follows. I move that Clause 2 of the proposed constitution act, 1980 be amended by (a) Striking out line II on page 3 and substituting the following:

“and expression; (c) freedom of the”

Should I deal with both subclauses Mr. Chairman?

The Joint Chairman (Mr. Joyal): Yes.

Mr. Robinson: By (b) Striking out line 12 on page 3 and substituting the following:

“press and other media of communication; and”

The purpose of this proposed amendment, Mr. Chairman, would be twofold.

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First of all, it would move to a separate clause the reference to freedom of the press and other media. It would not encompass freedom of the press with the general freedom of expression. Honourable members will be aware of the fact that as the clause now stands, Clause 2(b) it reads,

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of information;

The intention, as I say, Mr. Chairman, is simply that it is our view that freedom of the press may not be as narrowly defined as it is contained within the proposed Clause 2(b) in the revision of the government, that freedom of the press may not be restricted to just a form of freedom of expression and that we should leave that open to the development by the courts to further jurisprudence to determine that.

I say that, Mr. Chairman, particularly in light of the fact that the Diefenbaker Bill of Rights, which has certainly been referred to earlier by my friends on this side of the table, also explicitly separates freedom of the press from the other proposed freedoms. There are arguments, for example, in the case of defamation and limitations with respect to defamation, that there may be certain, and I am certainly not suggesting sweeping but certain broader exemptions by the press. So, as I say, that is the first intent of the proposed amendment, to separate that. That was recommended by the Canadian Bar Association, the British Columbia Branch and a number of other witnesses.

Secondly, Mr. Chairman, the proposal would change the words “of information” to “of communication”. The reason for that is that it is again possible, certainly not certain, but at least possible that the words “of interpretation” could be construed in a narrower sense than I am sure all members of this Committee would desire, that it could be construed to be merely factual information and not media which may be persuasive or containing beliefs or opinions. On that basis, the word “communication” is proposed as a substitute for the word “information” and I might add that the Canadian Bar Association has recommended that we substitute the word “communication” for the word “information”.

Mr. Chairman, that is the essence of the proposed amendment. There are the two major elements to it, and I would invite honourable members to support the amendment and certainly if there are any questions, attempt to deal with them.

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

Monsieur Lapierre.

Mr. Lapierre: Merci monsieur le president. First of all, I would like to say it is rather interesting to see this amendment when several constitutional studies have suggested that the press is simply one means of expressing ideas, views and information and it has no special status. But since our government has recognized the special character of the press, we think they should be included in this clause, but the government does not think we should have a separate paragraph.

There is no need for such a paragraph.

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But the word “communication” instead of “information” would be very acceptable because it is like bonnet blanc ou blanc bonnet, and the government would be ready to change that word providing that it remains in the same Clause 2(b) of the amended version.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I am sorry, I would like to recognize. Mr. Hawkes before you have any possibility to reply or give additional comments on the proposed motion.

Mr. Hawkes.

Mr. Hawkes: I just have a question for the Minister and for his legal advisers.

Are there any implications for the issue of hate literature or pornography in the government’s choice or in Mr. Robinson’s proposed amendments, including the change from the word “information” to “communication”? Does thsi restrict governments anymore in terms of dealing with those kinds of social issues or not?

Mr. Kaplan: No, our view is that the hate literature legislation would be justified within the qualification contained in Clause I for reasonable limits.

In other words, the concept of hate literature is a reasonable limit that would survive the enactment of this legislation.

Mr. Hawkes: Is the government aware of a brief presented by Allan Mewett professor of law to the joint clerks on November 24, where he raises the issue, as a law professor, that in fact this clause as worded, and my quote would raise serious doubts as to the validity of present laws relating to hate propaganda, under the Criminal Code of Canada, Section 281 (2), various sedition affects offences-Section 60 and 61; the publication of obscene literature, Section I 59; and blasphemy Section 260, to name a few.

Mr. Kaplan: It should be obvious that you cannot agree with all the legal opinions that have been brought forward and made to this Committee because they often disagree with each other, and the legal opinion that we rely on suggests that that is not a likely interpretation of the Charter of Rights by a court.

Mr. Hawkes: Have you specifically looked at those sections and received advice?

Mr. Kaplan: Personally, I have not, but the officials have looked at them and given us the advice that I have just reported, notwithstanding that opinion.

Mr. Hawkes: Thank you.

The Joint Chairman (Mr. Joyal): Having no more speakers, would like to invite Mr. Robinson to conclude on his amendments.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, just before I concluded I had a question for Mr. Lapierre, if I may.

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Mr. Lapierre indicated that there had been, I think he said, several constitutional studies which affirmed that freedom of the press was merely an extension of the freedom of expression. I wonder if he could indicate what those are, in view of the fact that the government, in 1978, with the same legal advisors as are presently advising the government, presumably, in Bill C-60 proposed that indeed freedom of the press should be separated from freedom of expression, and I would note that Section 6 of Bill C-60 has one section which preserves the freedom of opinion and expression and a second section which deals with the freedom of the press and other media for the dissemination of news and the expression of opinion and belief.

Which studies, following that particular proposal by the government of Canada, have indicated that the freedom of the press is merely an extension of the freedom of expression?

Mr. Lapierre: I might refer you to first of all to the Canadian Bar Association, and you mentioned the British Columbia division, but the Canadian Bar Association itself came, and in their constitutional study in 1978 they proposed simply freedom of thought, opinion, expression and communication and they did not want to have anything to do with the freedom of the press. But our proposition is that I think that Clause 2(b) recognizes the importance of the press and other media as key vehicles of information and views but without trying to elevate that media of communication unduly over the right of the average citizen to express his view or disseminate information. This, we believe, is a fair and reasonable balance.

Mr. Robinson: Mr. Chairman, Mr. Lapierre has referred to the study of the Canadian Bar Association’s committee on the constitution. He indicated that there were several constitutional studies.

Which other studies have made this particular point?

Mr. Lapierre: Well, I think I will have to research on that. I am sorry, I did not mean many.

Mr. Kaplan: I could add, the propositions of First Ministers at the time of the Victoria Charter treated the freedom of the press in the ordinary category of general freedom of expression and that the Special Parliamentary Committee, in which, of course, your Party was represented -took the same view that the press’s freedom of expression is covered by the general freedom of expression provided for in that section.

The Joint Chairman (Mr. Joyal): Does this cover the point that you wanted to raise, Mr. Robinson, in order that you will be able to conclude on your remarks?

Mr. Robinson: No, Mr. Chairman. I just wish to seek some clarification from Mr. Lapierre on those studies to which he has referred.

Mr. Lapierre, I’ understand you are now saying that there is a single study that you are aware of?

Mr. Lapierre: Well, we are talking about exactly the same thing.

Mr. Robinson: I see.

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Mr. Kaplan: Reference to four supportive views were made: the Victoria Charter, the Special Parliamentary Committee in 1972, the CBA Constitutional Study in 1978, and a recent view which was similar, expressed by the CBA when it appeared before this very Committee.

Mr. Robinson: Mr. Chairman, without labouring the point, of course, one is not surprised that the CBA’s recent view reiterates their earlier written view since that was their only mandate in appearing before this Committee.

The Victoria Charter was certainly not a constitutional study, but in any event, Mr. Chairman …

Mr. Kaplan: We have a Jot of respect for it, though.

Mr. Robinson: I will view with interest some of your comments on other aspects of the Victoria Charter at the appropriate time.

Mr. Chairman, I will not pursue the point. I think that it is important that we recognize that the press in society is a fundamental institution and that we may conceivably be narrowing their rights in proposing the amendment as the government has expressed it. I am pleased to hear, however, that the government is prepared to accept the amendment with respect to media of communication, but I would certainly urge the Committee members to consider supporting both.

Mr. Chairman, I understand that it is possible that if any Committee member desires a split in the vote that that will be granted, and I believe Mr. Lapierre has suggested that. I would certainly be prepared to accede to that.

The Joint Chairman (Mr. Joyal): With the unanimous consent I would certainly be agreeable to splitting the proposed motion, if so agreed by honourable members.

So I would like now to call the vote on the first motion as proposed by Mr. Robinson on behalf of the New Democratic Party.

The first motion is the one dealing with striking out line II on page 3 and substituting the following:”, and expression, (c) freedom of the,”.

Amendment negatived.

The Joint Chairman (Mr. Joyal): We come back to the second motion. I will read it for the benefit of all honourable members:

(b) striking out line 12 on page 3 and substituting the following:

press and other media of communication;


Amendment agreed to

The Joint Chairman (Mr. Joyal): We go to the amendment proposed by the government party. I would like to invite Mr. Irwin to propose the motion.

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[Texte]

Mr. Irwin: Mr. Chairman, on Clause 2, we have two amendments. The first is a numerical one. I move that the French version of Clause 2 of the proposed Constitution Act 1980 be amended by deleting line II on page 3 and substituting the following therefore:

de la presse et des autres moyens

Je veux proposer la motion que la version fran9aise de l’article 2 du projet de Loi constitutionnelle 1980 soit modifie en retranchant Ia ligne II, a Ia page 3 et en la remplacant par ce qui suit:

de Ia presse et des autres moyens

Je veux m’assurer aussi que le texte fran9ais est en tous points con forme au texte anglais dans I’ esprit et dans Ia lettre.

The Joint Chairman (Mr. Joyal): I am advised by the Clerk that we should deal at this point, if we are to respect the order of the motion, specifically with the one pertaining to Clause 2(c) and Clause 2(d). The motion that is numbered G-6, Clause 2, page 3-I think inadvertently you have read the motion numbered G-6.1, and that one comes only after we have dealt with the first one which is numbered G-6; because we have other amendments to deal with in between those two amendments.

Mr. Irwin: Monsieur le president, I move that Clause 2 of the Constitution act, 1980 be amended by striking out lines I 3 and 14 on page 3 and substituting the following:

freedom of peaceful assembly; and (d) freedom of association.

I would call on Monsieur Corbin, en francais.

Le copresident (M. Joyal): Monsieur Corbin, s’il vous plait.

M. Corbin: 11 est propose que !’article 2 du projet de Loi constitutionnelle de 1980 soit modifie par substitution, aux lignes 13 et 14, page 3, de ce qui suit:
c) liberte de reunion pacifique;
d) liberte d’association.

Le copresident (M. Joyal): Merci. Are there any other comments or points of information that honourable members would like to put forward?

Monsieur Lapierre.

M. Lapierre: The government is putting this amendment forward as a result of the representations made by the Canadian Bar Association concerning the removal of any doubt about confusing the two concepts, and we believe that this does not substantially change and that it would be easy …

The Canadian Bar Association argued that in the light of some cases a clear distinction must be made and we thought it could do it easily.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre. Is there any other speaker on the proposed motion.

I see that honourable members are ready for the vote.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): The honourable James McGrath

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Mr. McGrath: Mr. Chairman, it may facilitate time when we come to motions where there is unanimity and where you may not have to ask for a show of hands, but merely for agreement. It saves time.

The Joint Chairman (Mr. Joyal): We are certainly open to suggestions of that kind, Mr. McGrath; and we thank you for having made it.

So we move on the next amendment—Qne by the NDP party. I would like to invite the honourable Mr. Robinson on behalf of the New Democratic Party. It is amendment numbered N-4, Clause 2, page 3; and I always refer for identification of figures to the ones that are on top of the page on the right hand side which would help members to identify matters from the amount of paper they have in front of them.

Mr. Robinson.

Mr. Robinson: Merci, monsieur le president.

This particular amendment, namely that the proposed amendment to lines 13 and 14 of Clause 2 of proposed constitution act 1980 be amended by

(a) striking out the word “peaceful” in paragraph (c); and

(b) adding to paragraph (d) the following: including the freedom to organize and bargain collectively.

Mr. Chairman, once again, we are dealing with two separate proposals. The first proposal is with respect to the right to peaceful assembly which is proposed, as reformulated and would read:

2. Everyone has the following fundamental freedoms:
(c) freedom of peaceful assembly

as it is proposed now.

Certainly the intent of this amendment, removing the word “peaceful” is to bring it into line with the Diefenbaker Bill of Rights in this respect. The jurisprudence to date in Canada has dealt on the basis of that particular formulation in the Diefenbaker Bill of Rights which referred simply to the freedom of assembly and it was not qualified by the word “peaceful”.

I think it was the Federation of Canadian Civil Liberties and Human Rights Associations that urged that the adjective “peaceful” be removed and that there should be a burden resting on the government to prove that acts are illegal and that there should not be any burden on the individual or group to prove that they are in fact acting peacefully.

This fundamental right of assembly could, again, possibly be narrowed by inserting the word “peacefully”.

Now I recognize that this word is inserted in the United Nations Covenant which refers to the right of peaceful assembly. But as I say, Canadian jurisprudence has been dealing with the Diefenbaker Bill of Rights on this particular question, and I frankly do not understand what the word “peaceful” adds. It could be used to detract from what is a very fundamental freedom.

The second change which I would propose, Mr. Chairman, on behalf of the New Democratic Party is that we add to the new Clause 2(d) which now reads:

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(d) freedom of association,

the words “including the freedom to organize and bargain collectively.”

Mr. Chairman, I would certainly hope that this would be an amendment which would be supported unanimously by all members of this Committee, because it is a principle which has been established, not only in Canadian law, not only through the long standing principles of the International Labour Organization in which Canada has played an outstanding role, but in all major international statements of human rights.

Indeed, Mr. Chairman, the Universal Declaration of Human Rights, refers to the fundamental right of Canadians to form and join trade unions, to organize and to bargain collectively.

In addition, the International Covenant on Civil and Political Rights in Article 22 explicitly refers to the right to organize and bargain collectively.

The European Convention on Human Rights once again refers to the right to organize and bargain collectively.

So, Mr. Chairman, this right-this fundamental rightwhich I would submit is included within the concept of freedom of association, should be made explicit, because we are talking about the values of Canadian society and this must be surely recognized as one of the most fundamental values of Canadian society.

I hasten to point out that this does not go so far as to entrench in the constitution the right to strike as such. What we are talking about is the right of working men and women to organize and come together collectively and to bargain collectively.

The question of the right to strike is quite deliberately, frankly, not dealt with in this proposed amendment, because we are dealing with the fundamental incidence of freedom of association.

So, as I say, Mr. Chairman, I hope that particularly the second amendment, but that both amendments would be supported unanimously by the Committee.

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

I would like to invite now the honourable Jake Epp.

Mr. Epp: Mr. Chairman, I have a number of questions to put either to Mr. Robinson or to the Minister.

This amendment causes me some concern as to the implications which are in fact involved in it.

I believe Mr. Robinson said that this amendment would not affect the right to strike. Is that correct, Mr. Robinson?

Mr. Robinson: That is correct, Mr. Epp.

Mr. Epp: I would like the Minister to give us the government’s position on whether or not it would affect the right to strike.

The Joint Chairman (Mr. Joyal): The honourable, the Acting Minister of Justice.

Mr. Kaplan: Our position on the suggestion that there be specific reference to freedom to organize and bargain collec-

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tively is that that is already covered in the freedom of association that is provided already in the Declaration or in the Charter; and that by singling out associati6n for bargaining one might tend to deminish all the other forms of association which are contemplated-church associations; associations of fraternal organizations or community organizations.

If one tears apart that general freedom of association it may diminish the general meaning-freedom to associate.

We agree with Mr. Robinson, however, that the right to strike would not necessarily be affected by the inclusion of this new expression which is being proposed by the New Democratic party.

Mr. Epp: I have a second question, Mr. Chairman.

I would like to ask the Minister this. In public services, essential services specifically, if Parliament would be faced with a strike in a part of the public service which is considered to be essential, and there would be back to work legislation put through Parliament, how could that legislation be struck down if this amendment were in fact passed?

Mr. Kaplan: Those who wanted to oppose that legislation, if they chose to rely on portions of the Charter would choose Clause I, arguing that the back to work legislation was an unreasonable interference with general freedoms.

I doubt if back to work legislation could be affected by the Charter, or that the right to strike legislation could be affected by the Charter.

Mr. Epp: Could it not be the case that a union that is on strike at the present time-<>f course this is only a hypothetical case-and even an illegal strike, and there was back to work legislation, could you not argue, if this were included that their right to effectively bargain collectively is in fact being reduced or that narrow parameters are being put around it.

Mr. Kaplan: It is a possibility, but our view, as I have already indicated, is that this new language adds nothing which is not already provided in the right of association.

Mr. Epp: Thank you.

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

Before recognizing Mr. Nystrom, I would like to invite Madam Campbell.

Miss Campbell: Mr. Chairman, when we started as far back as November 13, 1980, the Minister was here and Mr. Tasse was here and I questioned just how broad was freedom of association. At that time I would say that under Clause I of the onus would have been on the individual or group to prove that the position they were in was legal.

In this case any legislation, following up on what Mr. Epp has said, by the government imposing any sanction against a group which would want to associate, would have to be dealt with in a manner in which it would have to be shown that it was demonstrably justified.

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In other words, going back to the new Clause I as proposed there would be a heavier onus to show that the organizing or association of any group was not legal. I go back to the case which was cited-the SIU. In that case it was shown that the organizing was-it was a Seafarers’ Union case-was wrong; it was illegal.

But I am wondering whether there was that heavier onus.

What I am trying to say is that since that day when questioned on this, I liked the idea of Mr. Robinson’s, but I felt at the time you included “organizing” but you went on to say that this freedom of the Charter would recognize the right of two individuals to organize themselves or to associate for that purpose-you were answering a question I had asked when I asked if fishermen had a right to organize. You specifically said this would be included in freedom of association.

I am wondering if there is a further extension of an added right to the individual because of the new Clause I which puts the onus on the government to destroy or go against the rights there.

Mr. Tasse: I think that is a fair interpretation of the application of Clause I in the context we are discussing.

An act of Parliament or a legislature imposing limits to that particular freedom would have to meet the test of Clause I, and it would have to be demonstrated that the limits were reasonable and justified in a free and democratic society.

The Joint Chairman (Mr. Joyal): Merci beaucoup.

I would like to invite now the honorable Bryce Mackasey on the same question.

Mr. Mackasey: My comment will be very brief. It is a subject which is not unfamiliar to me, when I think of my years as a member of a trade union, the IBW-and I am still a card-carrying member of that organization and have been for 40 years; and also having attended many ILO conferences where this whole philosophy has been discussed.

If I may, Mr. Chairman, I would like to suggest that union movement is better with the terminology “freedom of association” than with what is proposed, because the moment we include the freedum to organize and bargain collectively, we immediately develop a defence mechanism against this additional provision.

We tend to forget that there is nothing in law of this land to prevent workers from organizing; absolutely nothing.

There are dozens and dozens of unions in Canada-industrial unions, waterfront unions-that have just formed voluntarily like credit unions, which is a union.

There is nothing in the law which says that five, I 0 or 500 people cannot band together for a common purpose.

The problem with the unions comes not from their freedom of association, but to be recognized legally for another particular purpose; for instance the right to bargain on behalf of

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longshoremen, if you like, on the British Columbia waterfront. This is something you must negotiate.

But Mr. Chairman, what would worry me about including freedom to organize and bargain collectively is that we would be stressing the rights of a particular group of Canadians through their freedom of association to form a union.

I come back to the medical profession, the Bar–call it what you want-the chartered accountants: they are, in essence, a union: they are a group of Canadians who have banded together under freedom of association for a common purpose. I will not bore the Committee with history, but it is amazing in the old days what was given as the reason for getting together.

Although this is meant to help the trade union movement, I do not think it does, because most trade unionists I know of cherish their right to form their own union on a voluntary basis and then seek the right under the laws of their province, and to use that association for a specific legal purpose, maybe to bargain with their employers.

But I say this could restrict Canadians outside of the context-industrial unions, if you like-from forming their own unions for their own voluntary reasons-and doctors are a good example, because they are now saying “We want a union”, and they have a union! The Canadian Medical Association is a very powerful union and they are now looking to the government and saying “We should be bargaining collectively for our wages”!

So I just skay, Mr. Chairman, that I for one, and I am not speaking for the government, like the term freedom of association precisely as it is. I think on a broader perspective it is more in the interests of the workers than this addition.

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

Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman.

Mr. Mackasey has said a number of things which are of course true about the progress made in this country towards allowing workers to organize, to bargain collectively, and we do have in the Charter as proposed by the government freedom of association, and of course I am very pleased with that kind of progress, I am very pleased to see that in there, but where I differ a bit with Mr. Mackasey is that I think it is worthwhile to put in that Charter something which will give society perhaps a bit of direction, which will underline a basic and fundamental value in our society which is the right to organize and to bargain collectively.

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I do not think it takes away any or would even suggest . taking away the rights of any other groups. I know in my own province, Mr. Mackasey referred to doctors, the doctors in essence do that in my province. They have an organization, it is not called a union, it is called the Doctors Medical Association, of course, and they do bargain with the Saskatchewan government regarding their fees, and that is the case I guess in many if not all of the provinces in this country and I do not think it would interfere at all, Mr. Chairman, with that kind of right.

I just think it is very important if you look at the history of working people and the struggles they have had over the years in this country and around the world to form trade unions, to organize, to win collective bargaining rights, that we enshrine something a bit more explicitly in our constitution.

I can go back over the history of our own country, and I will not go into detail at all now about some of the problems that people have had. I can look even at our contemporary society and some of the problems that bank employees are having in trying to organize, and I just think it is a little bit easier for them if this explicit right is in our constitution giving our society a little bit more direction. I think it signals to employers that this right is a very important right.

One final comment. We look at recent world happenings, we think of Poland and the strife in Poland and the whole Polish situation is centred around this kind of an amendment, the right of the Polish workers to organize and bargain collectively, and they have won that right in their country, a very important step, and I hope it is the type of thing that will evolve throughout the Eastern Bloc nations as well.

That is really all I wanted to say, Mr. Chairman. I realize we have gone a long ways, I am glad freedom of association is in here but I think it makes it a bit more explicit, a bit more clear as to the kind of direction we want our society to go.

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

Mr. Robinson, you wanted to conclude on the amendment.

Mr. Robinson: There are no other speakers?

The Joint Chairman (Mr. Joyal): I have no other speakers, that is why I invite you at this point to conclude on the amendment.

Mr. Robinson: Thank you very much, Mr. Chairman.

I have listened with interest to the remarks of my friend Mr. Mackasey, and certainly Mr. Epp, and other concerns that have been expressed on this amendment and I would like to respond to just a couple of the concerns that have been raised.

First of all it was suggested by the Minister that in some way, by adding these words, that we were not adding very much because they were already included within the concept of freedom of association. Well, Mr. Chairman, if that is the case I find a certain conflict between the argument made by Mr. Mackasey and the argument made by the Minister.

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The Minister has said that this does not change anything, that it does not change anything whatsoever. Mr. Mackasey is saying that somehow it might change something.

Now, I am trying to understand which of those positions is the accurate position. I certainly think that, Mr. chairman, I would assume that the correct position would be that this is an example of one of the most fundamental freedoms of association and in no way does it derogate from the concept of freedom of association, and Mr. Minister, with respect. If what you are saying is that by specifying, using the words “including the freedom to organize and bargain collectively” that in some way be specifying that we are perhaps leaving out other, I think you said other associations, church groups and so on, I would be interested to hear the views of your Deputy on that.

I do not think there is any legal foundation for that whatsoever, because what you are saying is the word “including” is restrictive, and if you are saying that the word “including” is restrictive or could be construed as restrictive, presumably the same analogy or same argument would apply in Clause 50.

Mr. Kaplan: Sorry, if I appeared to be putting it on a legal basis I am glad I have the chance to clarify it.

I meant by that why is priority being given, why are you selecting one particular form of association to recognize when others that many would argue are more fundamental, like a religious association or an association of a community or an association of a group of ratepayers or political parties association. Why is the freedom to associate and bargain collectively so much more important than all the others that it should be given that special recognition? It seems to me a bad perspective to put on the freedom of association.

Mr. Robinson: Mr. Chairman, with respect to the Minister, what the Minister is 3aying flies in the face of the commitments that have been made by his own government and by the ten provincial governments, and I would draw to the attention of the Minister Article 22 of the International Covenant which reads as follows:

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

So, Mr. Minister, your government has recognized that that particular right is one which should be singled out when we are talking about freedom of association.

Mr: Kaplan: You keep reviving the discredited argument or suggestion that every commitment of the government can only be met by changing the Charter or by putting something in the Charter.

Mr. Robinson: No, Mr. Minister, I was merely responding to your suggestion that by singling this out we were indicating it had a certain priority. The government has already stated that this has a certain priority in accepting a commitment to Article 22.

Mr. Kaplan: You are reading from the UN Charter, not from a document prepared by this governmen

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Mr. Robinson: Well, Mr. Chairman, I will not-this document has presumably been accepted by the government.

Mr. Kaplan: It is accepted by the government. We signed it and our commitment is not to embody that covenant in the Charter, our commitment is to embody it in our country in one prospective way or another.

Mr. Robinson: You are singling out there, Mr. Minister, by accepting that, you are accepting the singling out of the fundamental right of freedom of association with respect to collective bargaining.

Mr. Kaplan: Not at all. Canada was only one voice in the drafting of that document.

Mr. Robinson: Have you not accepted that?

Mr. Kaplan: We have not accepted that that particular form of association is more important than a religious community or a political parties association. Perhaps you do, we do not.

Mr. Robinson: Mr. Chairman, I regret that the Minister appears to be ignoring the commitment that, as I say, not only the Government of Canada made but the provincial governments made under Article 22 to specifically recognize the importance of this form of freedom of association.

I would like to conclude, Mr. Chairman, if I may, by pointing out that this recommendation is supported by the United Church of Canada, by the Canadian Council on Social Development, by the B.C. Federation of Labour, and Mr. Chairman, I would hope that my good friend Mr. Mackasey might reconsider his words about the possibility this may in some way be destructive to labour, that labour might not support this when one of the strongest federations of labour in this country has indicated that they believe that this is the kind of thing which should be entrenched in the Charter of Rights.

Finally, Mr. Chairman, I would suggest that you have to go very far in this country or we do not .have to go very far back in our history to see why it is essential that this right should be spelled out.

In 1959, in the Province of Newfoundland, we all know what happened to the union there, the IW A. Their rights were swept away by a legislative pen, by a provincial government. We need only look today in the Province of Nova Scotia at the way in which the right to organize individual plants of a multiplant employer has been taken away, has been swept away by a legislative pen to protect a large antiunion employer.

Finally, Mr. Chairman, I suggest we have to look at home, right here in Parliament, where we deny the fundamental right to organize and bargain collectively to our own employees. We do not recognize those rights on the Hill.

An bon. Member: Shame.

Now, Mr. Chairman, if these are such fundamental rights, that these are such important rights that are recognized in Canadian society, why can we not even recognize the fundamental right to organize and bargain collectively for the

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employees of the House of Commons and of the Senate, and of the Library of Parliament? I do not understand that.

Mr. Kaplan: Are you suggesting that this would be one of the nonderogable rights?

Mr. Robinson: Mr. Chairman, derogability is a concept which certainly has not entered into this because Clause 1, as I am sure you understand, Mr. Minister, would apply to this.

Mr. Kaplan: But you are also suggesting that accepting your language would automatically lead to the unionization of the army, for example, or the armed forces?

Mr. Robinson: Well, Mr. Chairman, the Minister appears to have forgotten that if the government can show a particular limitation is demonstrably justifiable, then it will be upheld.

Mr. Kaplan: But why did you raise the suggestion that this would affect the rights of people on Parliament Hill to organize?

Mr. Robinson: Mr. Chairman, I am suggesting precisely that we need to recognize that this is an important and fundamental principle and that within the precincts of Parliament itself we deny those rights.

Mr. Chairman, I think it is essential that this principle, which has been recognized by the community of nations in the International Covenant on Civil and Political Rights, which was recognized in the Universal Declaration of Human Rights, should be recognized in any statement of fundamental rights and freedoms in this country today.

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

Yes, Mr. McGrath.

Mr. McGrath: I have a very brief question for Mr. Robinson because I basically agree with all of his arguments, and my question is in two parts.

I do not recall any group coming before the Committee advocating this particular amendment. I do not recall any labour group or any labour-oriented group; and secondly, because I intend to vote against this amendment for the simple reason it is already covered very clearly in Clause 2(c).

The Joint Chairman (Mr. Joyal): I want to remind all the honourable members that I have invited Mr. Robinson to conclude on his amendments and I would not like to reopen the debate unless I have the full agreement of all the members around this table.

Mr. McGrath: No, Mr. Chairman, I just wanted to make the point that as the amendments come forward we are finding, for example, in this particular case, with respect, I think it is redundant because it is covered.

Mr. Nystrom: Well, that is your opinion but that is not the opinion of others, Mr. McGrath.

The Joint Chairman (Mr. Joyal): That is a reason I think it is very acceptable or an opinion that honourable members can have to vote against the amendments, but as I have said very respectfully to the honourable members, I think at this point the honourable members are waiting to vote, I have already called Mr. Robinson to conclude on his amendments.

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Mr. Robinson: On a point of order, Mr. Chairman, I do not think the record should remain-! know Mr. McGrath would not want to mislead members of the Committee inadvertently.

Mr. McGrath: No, I was not being facetious, I was serious.

Mr. Robinson: There were three groups at least, Mr. McGrath, that specifically recommended that this right be included and I have just pulled out one, the United Church of Canada at page 15 of the brief, a section entitled, the rights of workers to join or form unions and to join in collective economic action. The right of workers to join or form unions is basic, and then they go on from there.

So there have been a number of submissions in that respect.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson. I think that you have provided the information that was requested.

Senator Muir on a point of order.

Senator Muir: I would j’ust like to point out that I will stack my Labour record against Mr. Robinson at any time, and I have been with him all along but in the last five minutes he destroyed his argument, therefore I shall be voting against him.

Some bon. Members: Hear, hear!

The Joint Chairman (Mr. Joyal): Well, thank you very much, honourable Senator Muir.

Amendment negatived.

The Joint Chairman (Mr. Joyal): Mr. Nystrom on a point of order.

Mr. Nystrom: Is it my understanding that a member of the Committee could request a roll call at any time?

The Joint Chairman (Mr. Joyal): Yes.

Mr. Nystrom: If so, I would like to request that if possible …

The Joint Chairman (Mr. Joyal): Well, I am sorry, it is too late. The vote has already been taken and it has been countered by the honourable members. It is always a possibility for any member to request a recorded vote but that request has to addressed to the Chair before the Chair calls the vote.

Mr. Robinson: Point of order, Mr. Chairman.

With great respect to the Chair, the standing orders provide that following the taking of a vote by hand that there can be a request for a roll call vote as well.

The Joint Chairman (Mr. Joyal): Well, I would like to consult very specifically the section of the Standing Orders to that effect and I have certainly no objection to calling a recorded vote but at this point I think I have called a vote.

Mr. Robinson: On a point of order, Mr. Chairman. I do not quite follow your ruling. I wonder if we could possibly ask the Clerk to briefly consult with standing orders? It is my submission that it is in order, following the taking of a

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vote by hand, to ask for a recorded vote, and I wonder if we could just check that point.

The Joint Chairman (Mr. Joyal): Well, the Chair will certainly not call two votes. The Chair will call only one vote and in order to call a vote the Chair has to be informed as to whether it will call a general vote with raised hands or if it will call a recorded vote. I think it is very logical, in my mind, and unless the honourable members provide me the very section of the standing orders I consider that the vote has already been given by the honourable members on this clause.

Mr. Robinson: Mr. Chairman, I wonder if we might just possibly, since this is the first time this has arisen, there might be a brief recess. It is 5 o’clock in any event and we could consult the Standing Orders and then come back.

The Joint Chairman (Mr. Joyal): Well, I will have to get the unanimous consent of the honourable members on that.

I think there is a possible way to deal with that. I think there is a possible way to handle the question as raised by honourable members and it is the following:

I suggest to honourable members that we call the vote on Clause 2 as amended, and if further on there is that possibility in the standing orders that we go to a recorded vote, then I am quite sure that honourable members will not oppose it.

There is such a provision very clearly, but at this point I would not suggest to members that we delay any work of this Committee for that very specific reason.

Honourable James McGrath.

Mr. McGrath: I will make a few comments perhaps for the benefit and help of the Chair. The Standing Orders will indicate that Committees conduct their affairs based on the rules of the House of Commons. When a vote is called in the House of Commons, a speaker calls for yeas and nays. If five members or 10 members do not stand at that time, there is no recorded vote but a vote has been taken by the yeas and the nays. That is precisely what happened here; you called for the yeas and nays. Then after the vote was taken, the honourable member for whom I have great respect, asked for a recorded vote and that is clearly out of order.

The Joint Chairman (Mr. Joyal): I suggest to the honourable members that the suggestion that I have just made seems to be a very sensible one and I would like then to call the vote on Clause 2 as amended and if later on the honourable members come with the very provisions that provide for a recorded vote, I have no objection to call that recorded vote. But at this point, I think the vote has already been registered and I am not ready to call the second vote on that very motion.

Mr. Nystrom: Mr. Chairman, that is perfectly acceptable to me. My only request to you was, is it possible at this sage to have a recorded vote. That is the question I put to you.

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The Joint Chairman (Mr. Joyal): Well, the answer is no from the Chair at this point.

Mr. Robinson: Mr. Chairman, I do have the citation in question, if I may. I believe this is applicable; Beauchesne’s Citation 601:

601. (1) Any member of a committee may ask the Chairman for a recorded division either before the question is put or following a division by a show of hands.

The Joint Chairman (Mr. Joyal): With such a provision, I would then agree that we could go on with a recorded vote.

Mr. Robinson: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): So all those in favour of the motion as read previously by the Chair, please raise-I am sorry, I will then ask for the Clerk of the House to make a proper call.

Mr. Irwin: Point of order.

The Joint Chairman (Mr. Joyal): I am sorry, the vote is called. I am sorry, Mr. Irwin, .the vote is called. There is no point of order when a vote is called.

I would invite the Clerk of the Senate to go on with the vote.

Amendment negatived; Yeas, 2; Nays, 20.

The Joint Chairman (Mr. Joyal): I will suggest to the honourable members that to avoid a loss of time in the future, that when they have the intention of asking for a recorded vote, and I think it comes clear during our exchange, I think it would be a gentlemen’s agreement that honourable members may inform the Chair previously and I think it will save time for all of us. There will be more time then to argue on the basis of the argument.

Mr. Irwin: Point of order, Mr. Chairman.

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

Mr. Irwin: If I may go back to Clause 2 when we referred and moved the French version of Clause 2 earlier relating to line three on page 3, what specifically has happened to this? I do not want it lost in the shuffle and dialogue that has occurred.

The Joint Chairman (Mr. Joyal): Yes, I think that you are right, Mr. Irwin. I think that in order to make sure that both texts are in conformity, that you should go ahead with the proposed amendment.

Mr. Irwin: Mr. Chairman, as I have read this once in English and French, can I have the consent to dispense with reading it a second time?

Some bon. Members: Agreed.

Mr. Irwin: Thank you.

The Joint Chairman (Mr. Joyal): So any intervention? I understand that the honourable members are ready to go on. I see that honourable members are unanimous. The vote is then accepted.

Clause 2 as amended agreed to.

The Joint Chairman (Mr. Joyal): On Clause 3, the Chair has been informed of two amendments. The first one is an

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amendment moved by the NDP Party and I would like them to call Mr. Nystrom on the amendment.

Mr. Nystrom: Mr. Robinson.

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

Mr. Robinson: Thank you, Mr. Chairman.

If Committee members are attempting to find the page, it is page N-5 and I will read the proposed motion. I move that Clause 3 of the proposed constitution act, 1980 be amended by striking out lines 15 to 20 on page 3 and substituting the following:

3. Consistent with the principles of free and democratic elections to the House of Commons and to the legislative assemblies of the provinces, and of universal suffrage for that purpose, every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly, to be a candidate for election thereto and to be qualified for membership therein, without any distinction or limitation that cannot be demonstrably justified Rnd, in any case, without any distinction on any grounds set out in Clause 15(1) other than the ground of age.

Mr. Chairman, if I may explain the changes that are being proposed in Clause 3 from the government’s proposed Clause 3.

There are essentially three major changes. First of all, it is our submission to houourable members of the Committee that the right to vote and the right to hold office is such a fundamental right that to impose a test of simply unreasonable distinction or limitation does not adequately reflect the seriousness and the importance of that right in Canadian society.

Now, I am pleased to see that the government has responded to this particular concern in the proposed package, at least to a certain extent in the government’s proposed amendment. I see, if my understanding is correct, that it will be the test of demonstrable justifiability as contained in Clause I, which would be applied to Clause 3. I wonder if I could just get clarification. That is my understanding of the intent.

Mr. Chairman, certainly, as I say, we welcome that response to the NDP amendment, that the test contained in Clause 3 would be a tougher test. There would be a higher standard than merely the reasonable distinction or limitation standard.

However, Mr. Chairman, it is my submission that our proposed wording deals with two other concerns.

First of all, it contains a preamble which reinforces the significance and the importance of this principle in Canadian society, a preamble, Mr. Chairman, which is taken word for word from the government’s own proposal, both in February of 1979 to the First Ministers’ conference and then again in July of 1980. Those are the words which the government inserted in their proposal at that time, and I think quite properly, recognizing the importance of the right to vote, the right to hold office. I would suggest that those particular words, the reference to universal suffrage and the principles of free and democratic elections, those words should, in fact, be included.

The next change is just a change that would clarify the wording as proposed by the government at the present time. As

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the government’s proposal now reads, it would grant the right to vote and also the right to be qualified for membership in the House of Commons or of a legislative assembly. I am sure that it is the intent of the government, Mr. Chairman, that this also encompass the right to be a candidate for election to any of these offices, but that intent is not clearly set out in the proposed Clause 3. There is a gap, in other words. Because one is qualified for membership in a Parliament or a legislative assembly does not necessarily mean that one is qualified to be a candidate, because once one becomes a member of a legislative assembly or a House of Commons, there may be other standards applied. There may be other tests applied for removal, for example, from the legislative assembly or from the House of Commons.

So what I am saying is it is one thing to be qualified for membership in a particular assembly; it is another to specify clearly that we are also talking about the right to be candidate without unreasonable distinction or limitation. This clarifies that and I believe it is an important clarification.

Finally, Mr. Chairman, we propose that there should be no distinction at any time in granting the right to vote or the right to be a candidate or the right to be qualified for membership in the legislative assembly or the House of Commons. There should never be any distinction on the basis of race, national or ethnic origin, of course, this is confined to Canadian citizens; colour, religion or sex. There should never be any distinction on those grounds in granting these fundamental rights in Canadian society.

That is the purpose of this amendment, Mr. Chairman, and once again, as I say, I am pleased the government has responded to this amendment to some extent. I would hope, however, that the government would be prepared to accept the amendment as it is being proposed by the New Democratic Party.

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

Mr. Hawkes.

Mr. Hawkes: Can I just begin at least by asking Mr. Robinson whether he has carefully considered his wording in relationship to requests made by a number of aboriginal groups which appeared before this Committee.

Part of some of those submissions at least was a view of the future which would contain representation in the House of Commons that was based on the aboriginal nation concept and as I read the propose amendment, in particular the last two lines, “without any distinction on any grounds set out in Clause 15(1) other than the ground of age”, I am wondering if he has considered that wording in that context.

Mr. Robinson: Mr. Chairman, certainly I recognize the concern that Mr. Hawkes is expressing, but I do not believe that this particular amendment would in any way affect that. If it were felt that it was important to make specific provision for aboriginal peoples in Parliament, I do not think that the words which are referred to in Clause 15 would in any way negate that possibility.

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Mr. Hawkes: How do you propose that aboriginal peoples would defend that distinction, their right to vote for the election of an aboriginal person to the House of Commons? How would they define their electorates and how would they define the characteristics of those who might seek office in those circumstances, while at the same time avoiding Clause 15(1).

Mr. Robinson: Mr. Chairman, first of all, I notice that with respect to Mr. Hawkes, that the Conservative Party has not in any way attempted to meet this concern of aboriginal peoples with an amendment put forward by your party. So I am not quite clear what your intent is in asking this particular question.

If, in fact, you believe that that is important to make that provision in the future, I would assume that you would have an amendment which would make that clear, Mr. Hawkes. I have not seen one proposed so far. But I would just question you or at least invite you to explain how it could be suggested that this proposed rewording would in any way deny that possibility. What we are saying is that the right to vote or what you are concerned about particularly, the right to be qualified for membership, cannot be denied on the basis of the grounds set out in Clause 15.

Now, if there were to be a change as fundamental as you are suggesting, if aboriginal peoples were to have the right to elect some of their own peoples directly to the House of Commons or to legislative assemblies certainly the possibility of amending this particular provision remains open.

Mr. Hawkes: Did I just hear you agree that for the time being, at least, without amendment this clause would close off that possibility?

Mr. Robinson: No, certainly not, Mr. Hawkes. As I say, I invite you to explain why it would specifically but even if it did, as I attempted to suggest, a change as fundamental as the change that you are suggesting might occur, I am sure would be brought about through amendment to the constitution and not by an interpretation of a particular provision of the existing Charter of Rights.

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

Madame Campbell.

Miss Campbell: Thank you, Mr. Chairman.

I would like to say a few words on this proposed amendment. I find that not only previous drafts perhaps that the honourable member referred to probably had unnecessary verbiage in it, but I do feel that his amendment certainly has a preambulus that is excessive and that takes away perhaps from the clear meaning in Clause 3 which, just for the record, because there will be an amendment proposed shortly, clearly it would state:

every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly, … and to b.: qualified for membership therein,

To use such a preambulus statement seems to be totally unnecessary to the rights that are granted which are clear, which are to vote and to qualify for office which are the two

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basic rights in any free and democratic elections or in universal suffrage.

In our view, it seems to me that the wording in the proposal is clear. It is direct and it tells what the rights are. It should not be overloaded.

In the bottom part of his proposal where he says, “without demonstrably justifiable distinction or limitation”, I feel that he admits that Clause l has taken care of this and Clause I is a direction to the whole Charter. His words are redundant because I think Clause l automatically applies to the Charter, and to any clauses within the Charter, as does Clause 15 when we get to Clause 15, which enumerates the specific discriminations that can come.

We are opposed to his amendments and rather than accepting it, we will probably be proposing a subamendment to delete the references to the limitation provisions in Clause 3.

The Joint Chairman (Mr. Joyal): Merci, Madame Campbell.

I see that I could invite Mr. Robinson to conclude on his proposed amendment.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman. Responding briefly to Miss Campbell who expressed concern about what she considered an excessively wordy preamble, once again I can only point to the .fact that it was your own government, Miss Campbell, which-and you may not have been a part of it at that time-proposed precisely this wording in February 1979.

Miss Campbell: In my own preamble to my statement I meant to imply that better minds had come to a clearer clause.

Mr. Robinson: In any event, it would be my submission that this wording is desirable in order to recognize the importance of these rights.

Mr. Chairman, I would just like to seek some clarification from the Minister with respect to the two other aspects of the amendment.

My first point is, first of all, whether he would be prepared to make specific reference, if he is not prepared to accept the preamble, to make explicit reference to the right to be a candidate for elections and not to leave that to possible interpretation.

Mr. Kaplan: I thought the point was well made by Miss Campbell that we view that as being included in the language there.

We feel that there is a considerable advantage in having concise language in our charter.

Nobody wants a long winded charter of rights and freedoms; and the honourable member is long-winded. The amendments that he is attempting to put forward are very long winded.

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When we talked earlier in the day about amendments which added nothing, it is a good reason for rejecting a long winded amendment that adds nothing. That is a reason, that unless some change can be justified as adding something to their rights and freedoms of Canadians, it should not be accepted.

Ater all, future generations of school children are going to have to memorize all this, and they are not going to be very grateful about having a long winded charter of rights and freedoms.

Mr. Robinson: Mr. Chairman, perhaps I did not hear the Minister correctly. Did I understand him to say that this was a long-winded. amendment?

Mr. Kaplan: Yes. It adds nothing in the way of additional rights and freedoms.

Mr. Robinson: I see.

The final question for the Minister, if I may, with respect to the addition that there can be no distinction at any time on the fundamental grounds set out in Clause 15(1) other than the ground of age.

Mr. Kaplan: That obviously is a clear duplication of the substance of Clause 15. We think that Clause 15 applies to all of the rights and freedoms.

Mr. Robinson: Mr. Chairman, I do not propose to pursue the matter. I believe the changes proposed are in line with representations made by a number of organizations, including the Canadian Bar Association, the British Columbia Branch; the Jewish Congress, and others; and I hope thay would find favour with members of the Committee.

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

I would like then to call the vote on the proposed motion.

Motion negative.

The Joint Chairman (Mr. Joyal): I would like to call the next amendment proposed by the government party and I would like to call Mr. Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

I would like to move that Clause 3 of the proposed constitution act 1980 be arr,ended by striking out lines 15 and 16 on page 3 and substituting the following:

3. Every citizen of Canada has the

As for the English text, Mr. Chairman, I move that Clause 3 of the proposed constitution act 1980 be amended by striking out lines 15 and 16 on page 3 and substituting the following:

3. Every citizen of Canada has the

Let me explain the difference between the amendment to the English text and the one to the French version. First of all, I would like to assure the committee that the effect of this amendment is strictly the same in English as in French. That is the most important part of it. We all know that the Department of Justice has now decided to have the French and English versions written according to the essence of each language. Therefore, both amemdments are not identical, strictly speaking.

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Thank you, Mr. Chairman.

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

Would any other member like to …

Mr. Robinson?

Mr. Robinson: I will try to be short winded, Mr. Chairman.

The question to the Minister is this. As I say, I welcome this step forward in line with the recommendations we put forward.

I wonder whether you would agree, Mr. Minister, that this would leave open to challenge in the courts-a challenge some of us consider to be a serious denial of the right to vote, and that is the question of citizens of Canada who may be outside of Canada at the time of an election but who certainly are still citizens of Canada and are denied the right to vote.

Would you agree that this could at least be open to challenge in the courts?

Mr. Kaplan: Well, it could; but I think I ought to say for the record that it may well be a reasonable limit to exclude them; after all they are not affected.

Mr. Robinson: Are you saying “a reasonable limit”, or is the test demonstrable justifiability?

Mr. Kaplan: I am sorry, demonstrable justifiability-it is both; and I am suggesting that people who are Canadian citizens and who do not live in our country for one reason or another may be justifiably deprived of the right to participate in an election.

Mr. Robinson: The second issue I would raise on this amendment, if I may, with the Minister is this.

Another group of citizens in Canadian society, Canadian citizens who are denied many other rights, are also denied the right to vote-and that is prisoners in Canada.

Would you also agree that it is at least open to challenge in this clause as it would be worded that there would be an onus on the government to show that it is demonstrably justifiable and reasonable that Canadian prisoners be denied the right to vote?

Mr. Kaplan: Yes, I agree with that. It would be a very arguable case on behalf of inmates that they were given a right to vote by this Charter of Rights and Freedoms.

There is no definitive answer, but our law officers have brought to our attention that possibility.

It is somewhat more difficult, because the clause talks about two rights-the rights to vote and to be qualified for membership, for example, in the House of Commons.

Now, is it a reasonable deprivation that a judge can not sit in the House of Commons? Mr. Robinson, I do not think you have directed to this, but in your earlier remarks you suggested that the rights went together and that there were two sides of a coin and that argument might well be made to continue the disqualification of judges to vote.

Again, like the case of inmates it is an open but different question.

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

Mr. Robinson: One final question, Mr. Chairman.

I am very pleased to hear the Minister confirm-! believe your words were that it was certainly at least a good possibility or a reasonably arguable case that Canadian prisoners might be granted the right to vote.

Is this the opinion which you have been given by the law officers of the Crown?

Mr. Kaplan: I have not been given a definitive opinion on the question, but just that it is a possibility. They were not prepared to confirm that a court would definitely rule in favour of inmates. They might very well find the other way.

But a respectable case can be made for it. There are many arguments against it, but there are also arguments for it.

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

Mr. Hawkes.

Mr. Hawkes: Mr. Chairman, one issue I wanted to raise with the Minister was the responsibility and power of the legislature of the House of Commons themselves to express members who have been duly elected for certain kinds of offences.

Do you feel this rewording of this clause would affect that in any way?

Mr. Kaplan: I think I can say pretty categorically that Clause 3 is not intended to address the conduct, the organization of an elected body and their right to establish their rules if that is what their constitutional document provides or the rules which apply to them wherever they have been drafted.

Mr. Hawkes: Now the issue of age: at the moment a lower age requirement. That would be open to challenge in the court in the future if people wanted to argue that way?

Mr. Kaplan: Yes.

I have just had a long argument on that subject in my own home over the weekend.

An bon. Member: Who lost?

Mr. Kaplan: There may well be challenges to the age qualification.

Mr. Hawkes: And the courts would decide that in the future rather than the legislatures?

Mr. Kaplan: No, it would be in the first instance for the parliament or the legislature to determine the rule, because that is what would be challenged.

Then that rule would apply unless someone challenged it and brought a good case, and the state could not defend the limitation as being demonstrably justified or an unreasonable distinction-all of the tests that qualify the right to vote.

Mr. Hawkes: The possibility exists, as I read the Charter, that the courts can rule that a particular part of legislation has no force or effect.

Mr. Kaplan: That is right.

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Mr. Hawkes: Could we find ourselves in a situation where that ruling was just made and therefore you had no age requirement for voting in a particular election. Is that a possibility?

Mr. Kaplan: I would like to draw your attention to the clause giving the court authority to prescribe a remedy. I think the remedy which would be prescribed would contemplate the continued responsibility of the legislature or parliament in question.

Mr. Hawkes: So they would set the age at that point.

Mr. Kaplan: Not necessarily. They could ask-this is a possibility; they could ask the legislature to reconsider the question, taking into account certain facts which might have been alleged before the court, that the courts chose to give weight to or something else.

It is open. There are all kinds of examples in the United States, to take one country we all know well of the type of prescriptions the court would put rather than necessarily and urbitrarily changing the law, in effect.

Mr. Hawkes: Would a defeated candidate have access to this provision in that fashion to overturn a close election and have a reelection-do those possibilities exist as well?

Mr. Kaplan: The defeated candidate, if he was a minor, could have status; but the legislation contemplates the action being brought by or on behalf of the individuals whose rights are being violated or who alleges that his rights are violated.

Mr. Hawkes: The latest rewording that the Minister of Justice brought in nine days ago is the best guess as to how we should protect the rights of citizens and avoid some of the possibilities. That is the advice we are getting from you and your officials?

Mr. Kaplan: Yes, and from a very great many briefs, and from most responsible sources, too. This language has a lot going for it.

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

I would like to invite now the Honourable Senator Nurgitz. Senator Nurgitz: Mr. Chairman, quite apart from the rules of either House of Parliament or the provincial legislatures to expel or do whatever is necessary to discipline their members, is there any specific provision in the criminal code, the federal statute, that prohibits the sitting in a federal parliament or a provincial legislature for, I think it is five years, I am not sure.

Mr. Kaplan: Provided in the Criminal Code.

Senator Nurgitz: My question is this, as one now reads the amendment, where every citizen has the right to membership in the assembly, I am really asking you how one relates one to the other.

Mr. Kaplan: A person disqualified by virtue of that provision- and it is in the House of Commons and Senate Act, and not the Criminal Code–could go to court and seek to have that limitation set aside on the ground that it was not demonstrably justified; it was a reasonable limit. The court could overturn that statute.

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Senator Nurgitz: Mr. Minister, we recently had a problem in my home province with a member of the legislative assembly, where the legislative assembly act did not make any provision, had no exclusionary feature for anything, at least not for that.

My understanding is that the speakers ruling there was to the effect that the Criminal Code prohibited that member from sitting-and that is without a specific rule.

Mr. Kaplan: Well, I may seek the floor in a moment to correct the source of that authority. We are checking whether it is in fact the House of Commons and Senate Act or the Criminal Code.

Senator Nurgitz: My understanding, Mr. Minister, is that it is in the Criminal Code.

Mr. Kaplan: I ought to know that, but I do not.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: Mr. Minister, this amendment causes me some concern.

You might argue that the Clause 1 limitations in fact takes care of what was in it before.

If you insist that that amendment be passed, there are a number of possibilities that I see could occur. For example, if in an enumeration in an election your name was not enumerated and did not appear on the electors list, or if, for example, a poll or part of a poll could be missed-and all of us have had that experience in some elections-if that is the case, could the person whose name was not on the enumerators list have the right, because they now had been denied the right to vote, in fact overthrow the election in that constituency? It affects his basic right.

Mr. Kaplan: They have the right. The act provides a procedure for having your name put on the list if it is not properly on.

Mr. Epp: Mr. Minister, what we are dealing with here is not the Canada Elections Act, but with the Charter which super.sedes the Canada Elections Act and every other statute in Canada.

Mr. Kaplan: It supersedes it, but only to the extent that those statutes are unreasonable.

I am suggesting that since the election act provides a pretty reasonable procedure for assuring that your name is on the list, and since error is something which always has to be contemplated, I cannot imagine that the constitution or the Charter of Rights and Freedoms can be resorted to to overturn an election under those circumstances.

Mr. Epp: I could contemplate that. I caJl see somebody trying to do it.

Mr. Kaplan: I can contemplate someone doing it; but I cannot imagine them succeeding.

Mr. Epp: I will give you another example. In a federal election you have to be 18 years of age in order to have the right to cast a vote, and a province, any province, could decide for the provincial or municipal elections the age shall not be

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18, it could be 17 or 19, for the sake of argument; now, is that unreasonable?

Mr. Kaplan: I think the legislature would make its own decision.

Mr. Epp: No, if the legislature has made a decision. Is that unreasonable? That is the question I am asking you.

Mr. Kaplan: Well, it would be their responsibility to defend it-the state’s responsibility to defend it and show that the age is demonstrably justified.

The difference between 17 and 18 would be difficult to defend-that 18 or 17 indicated more maturity than the other.

Mr. Epp: I do not believe you should use that argument, because you could take that argument right through the whole level of age that everyone goes through.

Mr. Kaplan: No, then it is not unreasonable if it is hard to define the difference between one and the other; it is not unreasonable to use one or the other. In other words, where the difference is hard to define, there may not be much difference.

Mr. Epp: Well, I get from your answer not only am I not satisfied, but the feeling that in your own answers and your own mind there is a doubt as well.

Mr. Kaplan: No, there is none. I am quite clear.

If the statute gives the right to vote to an individual, the Charter of Rights is complied with.

Now, reasonable means have to be provided within the statute for its exercise, but the right to vote is there.

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

Mr. Robinson: Mr. Chairman, I am quite prepared to proceed to the calling of the question.

The Joint Chairman (Mr. Joyal): I think Mr. Hawkes has an additional question.

Mr. Hawkes: Yes, a supplementary following up Mr. Epp’s line of reasoning. The statement that every citizen of Canada has the right to vote suggests, too, that people who have citizenship on the day of the voting should therefore be eligible, and yet I believe the Canada Elections Act is worded somewhat differently.

My question really is: is there a move within the government very carefully to review the provisions of the Canada Elections Act with a view to bringing forward to Parliament any changes which might be necessary as a consequence of this particular part of the charter, so that once the Charter goes into effect as law in this country, we are not left with an invalid Canada Elections Act.

Mr. Kaplan: On behalf of the responsible Minister who is accountable for the elections act, I can tell you that no such amendments are presently being contemplated.

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

I see that honourable members are ready for the question.

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Amendment agreed to.

The Joint Chairman (Mr. Joyal): We then come back to Clause 3.

Amendment agreed to.

Clause 3 as amended agreed to.

The Joint Chairman (Mr. Joyal): I would like then to move

on Clause 4.

On Clause 4- Duration of elected legislature bodies

On Clause 4 I have been informed of two amendments, one proposed by the government and another one proposed by the New Democratic Party and I would like to call, then, as the first one, the amendment proposed by the government party.

Monsieur Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

That the French version of Clause 4 of the proposed Constitution Act, 1980, be amended by striking out lines 20 to 24 on page 3 and substituting the following:

4. (1) Le mandat maximal de la Chambre des communes et des assemblees legislatives est de cinq ans a compter de Ia date fixee pour le retour des brefs relatifs aux elections generales correspondantes.

The addition of the underlined words in paragraph l of the French text, Mr. Chairman, leaves absolutely no doubt about the precise date from which the five year duration is determined.

Thank you.

Le copresident (M. Joyal): Merci, monsieur Corbin. Any other intervention on that amendment that is rather technical?

Shall the amendment carry?

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to then move to the next amendment, the one that is moved by the New Democratic Party and I would like to invite Mr. Robinson.

Mr. Hawkes: Point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Hawkes on a point of order.

Mr. Hawkes: Has that been circulated?

The Joint Chairman (Mr. Joyal): The New Democratic Party, yes, and you are right, I should have identified it maybe in a clearer way and it is the amendment that is number N-6, Clause 4, page 3. It is presently circulating. It is on its way, Mr. Hawkes. Do not look under your pile, you will not find it there. It is coming on the top of your pile.

I think that all the honourable members of the Committee have now a copy of the proposed amendment and I would like to invite Mr. Robinson to proceed with the amendment.

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Mr. Robinson: Thank you, Mr. Chairman.

I will first read the proposed amendment.

I move that Clause 4 of the proposed constitution act, 1980 be amended by (a) striking out line 26 on page 3 and substituting the following:

(2) in time of real or imminent war;
(b) striking out line 33 on page 3 and substituting the following:
of Commons or the legislative assembly present and voting, as;
and (c) adding immediately after line 34 on page 3 the following:
(3) No continuation under Clause 4(2) of the House of Commons or a legislative assembly beyond five years shall last longer than six months but a continuation may be renewed under that subclause before it expires.

Mr. Chairman, as is evident, there are three separate proposals here, I will try to deal with them in the order in which they are presented.

The first proposal is that rather than the present wording in Clause 4(2), “in time of real or apprehended war, invasion or insurrection”, that we should be using the word “imminent” to substitute for the word “apprehended”.

The reason for that is the word “apprehended” allows our courts virtually no jurisdiction whatsoever to go behind that declaration. These are the same words that are contained in the War Measures Act, Mr. Chairman, which has certainly been judicially determined in a very narrow fashion to be a subjective kind of test. Is it apprehended or is it not? It does not matter whether there are any objective grounds for that, the only thing that matters is whether or not the government believes, that could be without any reasonable grounds, believes that there is an impending war, invasion or insurrection.

This would substitute the word “imminent” which would give the courts an opportunity to review that declaration because, Mr. Chairman, what we are talking about is a suspension of democracy itself, and surely when we are talking about something that fundamental, the courts should have an opportunity to ensure that this declaration which is made of an apprehended war, invasion or insurrection indeed has some objective basis.

I would point out that this particular amendment has been proposed by, among others, the Canadian Jewish Congress, the Newfoundland Bar Association, the Canadian Civil Liberties Association and the Vancouver People’s Law School.

It may be argued by some that there is a safeguard of requiring a two thirds majority, however clearly that would not get around the concern which is raised with respect to the totally subjective nature of this test.

It may also be argued that there is a test of demonstrable justifiability; however, in response to that I would point out, Mr. Chairman, that all that has to be demonstrably justified is that there was an apprehension. It does not have to be

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demonstrably justified that there was any basis for that apprehension, merely that the apprehension itself existed.

So that is the purpose of the first proposed amendment, Mr. Chairman.

The purpose of the second proposed amendment, very briefly, is to clarify what majority is required, that we are talking about those persons who are indeed present and voting at the time the vote is taken and not one third of the total number of members who may in fact be eligible to vote.

The final section is perhaps the most important, Mr. Chairman, because what the proposed Clause 4(3) would indicate is that there cannot be an indefinite denial of the right of the citizens of Canada to decide for themselves who is to govern them. There cannot be an indefinite suspension of democracy.

As Clause 4(2) is now worded, once a decision is made by two thirds of the members of a federal Parliament or provincial legislature to extend their mandate beyond five years, that extension can be indefinite, and what this suggests is a very reasonable procedural safeguard. It suggests that there should be a review at least every six months to ensure that it is still the will of Parliament of the legislative assemblies that this state of emergency exists, that this suspension of democracy should be continued.

Now, again, there may be some who suggest that demonstrable justifiability should apply here, but surely there should be an option on the elected representatives of the people to determine for themselves at some point, at periodic intervals, whether the suspension of democracy should indeed continue.

So that is the purpose of that clause, Mr. Chairman. I would note that the ramifications of a declaration of emergency are very serious indeed because it has been held by the highest court of this land that when there has been a declaration of emergency, that the division of powers no longer exists. Under Section 91 &nd Section 92 the federal government can move in and encroach on any provincial powers.

So when we arc talking about a suspension of democracy, when we are talking about a possible reallocation of powers in Canada, surely it is not unreasonable to suggest that elected members should have an opportunity to pass judgement on that at periodic intervals.

That is the purpose of the three amendments which arc being proposed to Clause 4, Mr. Chairman, thank you.

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

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, before I comment on one or two of the amendments I would like a clarification in terms of procedure.

There are clauses of the three amendments that appeal to me. There are others that I cannot support. I am wondering if you can give us some clarification on that as to how you might proceed in order.

The Joint Chairman (Mr. Joyal): Well, as I have already suggested previously this afternoon we could certainly divide the proposed motion, and if there is on that very question an

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aspect that you want to reserve or that you want to suggest should be divided I am certainly ready to wait for any request put through by the honourable member in that respect.

Mr. Epp: Mr. Chairman, I will make the request, and as I make my other comments possibly members can reflect on it.

It would be my request in this amendment that you call the three separate amendments as separate votes. In other words, we discuss the whole amendment as one but you call for three votes.

That being the case, then, Mr. Chairman, if there is agreement, you could of course clarify that later.

The Joint Chairman (Mr. Joyal): I do not see any opposition around the table on that so you can go on, Mr. Epp.

Mr. Epp: Thank you, Mr. Chairman.

Mr. Chairman, regarding the amendment and the question, first of all, of real or apprehended war. If I understand correctly, the present regime that governs this area is the fact that we are at a situation where the government as such at the present time, and where governments in the past have been at a grave or probable danger and that the New Democratic Party amendment would move us toward a position of a clear and present danger.

I have difficulty with their amendment for this reason, that I believe it is the responsibility of government to govern and while all of us have seen the experience of 1970 and do not want to see that repeated, I do feel on the other hand, on the other side of that balance well, so to speak, there is the need to govern, especially at that period of time.

For that reason I do not like the idea of “imminent” because who then determines what is imminent, and I think in this case it is the elected representatives of the people that must decide that rather than take it to court where the very delay of the action could cause grave difficulty and in fact danger to the country.

The second amendment, I believe that in view of the suspension of democratic rights it is not sufficient for those members who are present and voting, I believe it should be one third of the members in the House, in terms of membership, the people I believe have a right to know as to their representatives.

The last Clause, Clause 3, appeals to me. I believe that the government itself would want the reassurance of the House every six months in terms of approval of the position that they have taken.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp.

Mr. Hawkes on the same point.

Mr. Hawkes: Thank you, Mr. Chairman.

I think the choice facing the Committee is the government’s original wording versus the amended wording, and this clause has been I guess more bothersome to me since I first saw it than perhaps it has been to most, and I would like to deal with the Minister for a minute on the original wording to make sure that I understand.

[Page 94]

I have watched that come through two drafts and now a third draft by the government, and I guess I am concerned that it has not been changed through that process, and I think that lack of change speaks to my continuing fear that we are rushing, that we have a restricted range of opinion, that we have not had time to read all of the written briefs with the care and attention that maybe they should have had, that witnesses have told us that they did not have time to study the wording in every case, but my first question to the Minister:

The present wording of this Clause, given your 12 years of experience in the House of Commons and the wisdom and knowledge that that brings about the rules of the House of Commons, given that, what is the hypothetical minimum number of members of that House that would have to vote for a resolution of continuation?

Mr. Kaplan: Well, I want to be sure I understand the question but before addressing the question I want to comment on the premise of your question with which I disagree.

I do not think the facts support your assertion. The government has been very firm about the formulation proposed. You suggest that there were three drafts of it; in fact, there are none in the English version and only one in the French version, which is not done to change a policy in any way but to clarify the meaning of language.

So, from first to last the proposals of the government have been the same as they are before you now.

Mr. Hawkes: Correct, and I am sorry if I said that incorrectly but I …

Mr. Kaplan: I thought the impression might be created that we had some degree of uncertainty about how this emergency situation ought to be handled and that is not the case.

Mr. Hawkes: I just suggested that it has been looked at three times, once in the original formulation, with the Justice Minister’s amendments and then with the revision on the French side, which is the one we are presented with.

Mr. Kaplan: Well, I think I could say this is substantially unchanged from beginning to end.

Mr. Hawkes: Yes, I would agree.

Mr. Kaplan: Thank you.

Mr. Hawkes: Now, my question is: given your knowledge of the rules of the House of Commons regarding quorum, with this wording how many members of the House of Commons would it take to vote in the affirmative to continue the Parliament indefinitely?

Mr. Kaplan: It would have to be carried by a majority of the members who are present in the House and not opposed by one third of the total membership of the House of Commons, which is 90-odd.

Mr. Hawkes: The quorum in the House of Commons is 20?

Mr. Kaplan: This, incidentally, is the precise formulation contained in the BNA Act of 1867.

Mr. Hawkes: We are in a situation of supposed constitutional renewal …

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Mr. Kaplan: Mr. Hawkes, I have to correct the information that I just gave you.

The version of the BNA Act which established this formulation, which we are continuing and only changing the French version slightly, was enacted in 1949. Section 91 of the BNA Act.

Mr. Hawkes: Mr. Minister, the ·quorum in the House of Commons is 20, and is it conceivable that the unanimous agreement of those 20 people in quorum would have the force in law to continue the Parliament of Canada beyond five years in the extreme case with that wording?

Mr. Kaplan: Yes.

Mr. Hawkes: And that is satisfactory to the Government?

Mr. Kaplan: Well, how many members of Parliament might have survived to that particular time given the kind of war or other incident that one could imagine?

Mr. Hawkes: Do we also with the wording have the situation where …

Mr. Kaplan: I am making the point that it is reasonably flexible and it is tending to be balanced in favour of the emergency power, but the apprehension has to be bona fide and I do not think Mr. Robinson gave sufficient weight to that.

The apprehension has to be a genuine bona fide apprehension and once it is, as Mr. Epp said, he wanted the government and the Parliament to have the authority to operate.

Mr. Hawkes: Do we have a situation with the wording as it sits where a motion could be posed by, say, 80 members of the House, I think more than one third would imply 95, but where a motion could be posed by 80 members of the House and supported by 60, and it would carry?

Mr. Kaplan: No, because it has to be carried in the normal way by a majority.

Mr. Hawkes: Then how am I supposed to …

Mr. Kaplan: In order to be a resolution carried by our House of Commons it has to be carried by a majority, so that is test number one; but that is not sufficient. There is a second test and that is that it has to be unopposed by 95 members in the present House of Commons.

I would like to have the exact number. It is 94.

Mr. Hawkes: It says more than one third, I think, Mr. Minister, that takes you to 95.

Mr. Kaplan: Correct.

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

I see that it is 6 o’clock and I would like to adjourn the meeting to eight tonight.

EVENING SITTING

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

Could I ask the honourable members of the committee to please take their seats so that we can resume our work where we left at dinner time.

[Page 96]

I will remind the honourable members that we havefcalled Clause 4 and that we are debating an amendment _by Mr. Robinson. I will now recognize Mr. Bockstael.

Mr. Bockstael.

Mr. Bockstael: Thank you, Mr. Chairman.

The members of the Liberal party or the government side feel that the word “imminent” is not a suitable word. “Immiment” could mean a month, a week, a day, and we are convinced that the word “apprehended” is more apropos and we want to stick to the word that better describes the potential or the possibility of such a situation. So that is to the first amendment which the NDP have proposed and we hold to our original text which wants to use an apprehended situation.

In the second instance that the House would have to come together every six months to decide whether it is allowed to continue, this is unnecessary; it would depend on the nature of the urgency. The position taken by the government to continue beyond its normal term of office would have to be evaluated and justified and it does not make sense, if the Cabinet was maintaining the work of the government during a recess, to have to bring all the members back so that at least two thirds are in favour of continuing at the time of an emergency; it does not seem a sound proposal.

Calling an election in such a situation would place the country with executive management of the country while we are trying to decide whether we are going to have a new Minister of National Defence, and it is not consequential. So we oppose that amendment that they propose and we hold to our original text also which indicated that we would want two thirds of the members of the House in favour of continuing rather than two thirds of the members present. We, on this side, would vote against all three amendments.

Mr. Epp: May I ask Mr. Bockstael what about the third part of the amendment? Mr. Bockstaeal, would you address that?

Mr. Bockstael: The third part? I believe that clause 4(2) was the word “imminent” in lieu of “apprehended” and we will stick to “apprehended”; the second one, “Commons or the legislative assembly present and voting”, we are saying …

Mr. Epp: There was a third one.

Mr. Bockstael: The third one, no continuation unless the assembly is called together within six months automatically to renew or extend its mandate.

Mr. Epp: Do you agree with that one?

Mr. Bockstael: We do not agree with that one because it would necessitate calling Parliament to see if it can keep on going in the middle of a war, if you use it in that context.

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

I see that I have no other speakers on my list and I would like then to invite Mr. Robinson to conclude on his proposal.

Mr. Robinson: Thank you very much.

[Page 97]

Mr. Chairman, without repeating the arguments that I made earlier, I would like to emphasis the extreme importance which I believe this Committee should attach to the proposed rewording of Clause 4(2) to deal with the word “apprehended”. Mr. Chairman, the words “apprehended” and “insurrection” have a rather unfortunate history in this country, to say the least. I would remind honourable members of this Committee that it was precisely the invocation of the sweeping powers under the War Measures Act in October of 1970, using that very authority, the sweeping authority of apprehended insurrection which took away the fundamental civil rights and civil liberties of many people, which involved the arbitrary arrest of over 450 Quebecois, which involved the denial of basic rights to communicate with their counsel, in some cases to communicate with their families, being held for up of three weeks.

That is the history of the words “apprehended” and “insurrection” in this country. Unless anybody thinks that the government of this country might not abuse that, we only have to look back to October, 1970 to see how those words were abused, because there is no doubt whatsoever that there was not a scintilla of evidence to support the apprehended insurrection which alledgedly existed. We are still waiting today to see some evidence for this apprehended insurrection which resulted in a sweeping denial of civil liberties, particularly of the people of Quebec but, of course, which applied right across Canada.

So it is in view of that history, the history of the word “apprehended”, what that means to the people of Quebec and I suspect the memory of the words “apprehended” and “insurrection” is much stronger in their minds than those of most other Canadians, that I suggest that this Committee should give the courts some jurisdiction, some leeway to go behind the arbitrary declaration of a government, that we think that an insurrection exists in this country.

Mr. Chairman, it is on that basis that I propose and am supported by the Canadian Civil Liberties Association and a number of others that the words “or apprehended” be substituted by the words “or imminent”.

With respect to Clause 4(b), I believe that I discussed this briefly with Mr. Epp, my understanding was that Mr. Epp, in recognizing the serious nature of this sweeping away, the suspension of democracy, as I have called it, that there should not be perhaps as rigorous a voting requirement as this amendment would indicate. I would point out to Mr. Epp that in fact this makes it easier for a smaller number of members of Parliament who feel strongly on this subject to block the suspension of democracy and the indefinite continuation of Parliament.

Finally, Mr. Chairman, with respect to the proposed Clause 4(3), I would merely point out that what we are doing if we pass this is to permit the government to arbitrarily declare, with no reasonable grounds whatsoever, that they apprehend an insurrection, whatever that means, and to deny Canadians rights which they take for granted, to invade provincial powers with no time limitations whatsoever, with no time limitations

[Page 98]

whatsoever. This can go on indefinitely. And lest again, you think I am being academic, one need only look at countries in which this kind of power exists. This is the kind of power which is being used to maintain many corrupt dictators in power in other countries.

The amendment simply calls for the right of members of Parliament or a legislative assembly to have a review at six month intervals to ensure that the continuation of the state of emergency reflects the will of the people of Canada or of that particular province. If we are dealing with a war, that war may in some cases at some point, turn to be an unpopular war and there would no opportunity for Canadians, through their elected representatives, to voice their concerns about that.

In the case of the war in VietNam, for example, had there been a provision such as this, had a government in the United States imposed this section of the act to extend their power indefinitely, a draconian declaration of suspension of democracy in the interest of national security, there would be no opportunity for congressmen in that situation, under this formulation, to at some point say, ‘Enough, we want to pass judgment on that action”.

It is on that basis, Mr. Chairman, that these three amendments are proposed and I urge support from the members of this Committee.

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

I will then call the vote separately on each of the three proposed amendments. I would like to call the vote on the amendments:

That Clause 4 of the proposed constitution act, 1980 be amended by

(a) Striking out line 26 on page 3 and substituting the following:

(2) In time of real or imminent war,

All those in favour of the amendments.

Mr. Robinson: I would ask that this be a recorded vote, please.

The Joint Chairman (Mr. Joyal): Certainly. I would like to complete the reading of the proposed amendment. I would repeat:

(a) Striking out line 26 on page 3 and substituting the following:

(2) In time of real or imminent war, That Clause 4 of the proposed Constitution Act, 1980 be amended by (a) striking out line 26 on page 3 and substituting the following:

3, de ce qui suit: ou d’insurrection, reelles ou imminentes.

May I invite the clerk of the Senate to call the vote, please.

Amendment negatived; yeas, 7; nays, 14.

The Joint Chairman (Mr. Joyal): I would like then to …

Mr. Epp: Mr. Chairman, on a point of order.

The Joint Chairman (Mr. Joyal): On a point of order, honourable Jake Epp, before I go on with the …

Mr. Epp: Thank you for recognizing me, Mr. Chairman.

[Page 99]

Senator Yuzyk is in his place, replacing Senator Roblin. We are having some difficulty in that we believe that .the documents needed have been completed well before the 6 o’clock adjournment. For some reason, they are not in the hands of the Clerk and I just want to point out that while I know that you cannot recognize, Mr. Chairman, until that document is either found or whatever-it might have been misplaced-that in fact, Senator Yuzyk is here replacing Senator Roblin.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp. I canot recognize you …

Mr. Fraser: I have nothing to say. Before you proceed, I want to discuss something with the leader of our group, please.

The Joint Chairman (Mr. Joyal): I will, with great deference, honourable John Fraser, allow your colleague, honourable Jake Epp to make the necessary change so that I could call on the Clerk of the House of Commons to call your name on the next vote.

Mr. Epp: Could the Clerk, for our purposes, indicate who the members are of the House on our side that are now registered, please?

The Joint Chairman (Mr. Joyal): Certainly. I will read the list; I think it will be easier: Mr. Epp, Mr. Hawkes, Mr. Kushner, Mr. McCuish and Mr. McGrath.

Mr. Beatty: Mr. Chairman …

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Beatty, I cannot recognize you. You are not a member.

Mr. Beatty: That is precisely the point.

The Joint Chairman (Mr. Joyal): I am sorry, through Mr. McGrath, I think that you can-we had a discussion this morning on this point and we are following that rule and I know that I do not have the record of your assistance at this point, but I know that this has been referred, this assistance and I think that all those things will be corrected in the near future so that all our colleagues who have been in good attendance will be participating in our further discussions. Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I have just spoken to personnel from. our Whip’s office and I have been informed that notification of those changes were made at 6 o’clock tonight, well in advance of the 8 o’clock call of this meeting. I think it is just a technicality and I would suggest that you defer the vote for a few minutes until those changes have been filed with the appropriate authorities.

The Joint Chairman (Mr. Joyal): Meanwhile, while those housekeeping things are settled, I could inform the honourable members that on the next clause, which is Clause 5, the Chair has been informed of two amendments. The first one is proposed by the Conservative Party and the second one is proposed by the NDP Party. Maybe Mr. Epp you are in a position to inform us now that the substitution has been made so that we could go on.

Mr. Epp: Mr. Chairman, only Mr. Leblanc can tell us. I understand that according to Mr. Leblanc as well, that the notification went at 5:50p.m. and it still has not been

[Page 100]

and that is the difficulty. I believe we had done all our work at 5:50p.m.

The Joint Chairman (Mr. Joyal): I would just quote to you that I hope that those who are the last will be the first in our next vote.

Mr. Epp: Mr. Chairman, we always live in that hope.

Mr. Chairman, possibly just to advance the meeting, if Mr. Beatty is here to take his place, he is to replace Mr. McCuish, I believe that has been done by unanimous consent.

The Joint Chairman (Mr. Joyal): I can inform you now that those substitutions have been made in reference to honourable John Fraser and honourable Perrin Beatty, but in the contest of the participation of honourable Senator Yuzyk, I am still expecting some information from the Senate and I do not think that we can have it tonight, as the Clerk has informed me.

Mr. Epp: Mr. Chairman, I thank you first of all for the members of the House. I think that is cleared up. Regarding the Senate, that is the second concern and I realize the Senate is not meeting tonight and will not meet tomorrow and therefore, it is impossible to make those changes, and I would ask that some check be made, as well, as to whether or not the notification did not go forward and whether that work had not been done and in fact that we should be entitled to that vote.

Senator Yuzyk: Mr. Chairman …

The Joint Chairman (Mr. Joyal): I am sorry, Senator Yuzyk, I cannot recognize you because you are not a member of the Committee.

Senator Yuzyk: I think I should explain that I was asked at noon today to substitute for Senator Roblin and I saw him at 2 o’clock and he was very happy about it, and I came here with the full knowledge that I would be his substitute today and tomorrow morning.

The Joint Chairman (Mr. Joyal): Yes, honourable Senator Yuzyk, but it is as if someone would say to you, “You can go to the theatre tonight. I have a seat reserved. It is number seven”. And if the person does not provide to with the ticket, the lady at the box office will not let you go in, you see, and I happen to be in that position of being in the box office, and unfortunately, even if you have a nice date, I cannot honour it and I am very sorry for that and it is merely a technical question. It has nothing to do with you and I have known you personally for many years and we have sat together on many standing committees and you will realize that I am unfortunately in that difficult position.

Senator Yuzyk: Yes, you have to stick to the rules, Mr. Chairman.

Mr. Epp: Mr. Chairman, there is only one difficulty with that, Mr. Chairman, and that is if you are sitting in the box office and you lost the ticket, it should not be Senator Yuzyk’s fault.

[Page 101]

The Joint Chairman (Mr. Joyal): Certainly not; I would check my register to see if the tickets have been sold.

I would like now to call the next vote on the amendment which reads: striking out line 33 on page 3 and substituting the following:

of Commons or the legislative assembly present and voting, as

Amendment negatived.

The Joint Chairman (Mr. Joyal): The next vote on the following motion adding immediately after line 34 on page 3 the following:

(3) No continuation under Clause 4(2) of the House of Commons or a legislative assembly beyond five years shall last longer than six months but a continuation may be renewed under that subsection before it expires.

Mr. Robinson?

Mr. Robinson: May we have a recorded vote on this, please?

The Joint Chairman (Mr. Joyal): Certainly.

Amendment negatived: Yeas 9; Nays 14.

Before I call the vote on Clause 4, I would like to welcome Senator Tremblay and say to Senator Yuzyk that you have now a seatmate and expect that you will be getting the ticket on number 7, because there is someone else on seat number 8.

I would like then to call the vote on Clause 4 as amended.

Clause 4 as amended agreed to.

I would like to call Clause 5.

On Clause 5-Annual sitting of legislative bodies

As I said earlier, on Clause 5 the Chair has been informed of two amendments; one moved by the Conservative Party, and the second by the New Democratic Party.

I would like to invite the honourable James McGrath to introduce the amendment on Clause 5.

Mr. McGrath: Mr. Chairman, I move that Clause 5 of the proposed constitution act, 1980 be amended by (a) renumbering Clause 5 on page 4 as Clause 4(3); and (b) adding thereto immediately after line 3 on page 4 the following heading and Clause:

Right to Information

5. Everyone has the right to have reasonable access to information under the control of any institution of any government.

Because I believe the cause of bilingualism would be set back considerably if I attempted to read it in French, I will ask Mr. Fraser if he will read it in French.

The Joint Chairman (Mr. Joyal): Before inviting Mr. John Fraser to do so, I would like to indentify very clearly the amendment. It is the amendment on the page numbered CP-3, Clause 5, page 4. I see our services are distributing at the present time some additional copies, and I will make sure in the future that you do not receive additional copies when we receive an amendment, because it adds confusion to something

[Page 102]

which is already very difficult to handle. That is why I have identified the amendments to ensure that all honourable members have the amendments before their eyes.

Could you please go on, Mr. Fraser.

Mr. Fraser: Mr. Chairman, you are very generous in asking me to express this motion in the other official language of the country. I have put a number of excellent and dedicated French instructors through a most horr endous time in recent years, and perhaps I should take a whack at this and see what happens.

Moved

That Clause 5 of the proposed Constitution Act 1980 be amended by:
a) renumbering Clause 5 on page 4 as subclause 4(3) and;
b) adding thereto immediately after line 3 on page 4 the following heading and clause:

Right to information

5. Everyone has the right to have reasonable access to information and to the control of any institution of any government

Some bon. Members: Hear, hear!

Mr. Fraser: I would like to say that I acknowledge that applause and I shall pass it on to my French teachers.

The Joint Chairman (Mr. Joyal): Mr. McGrath before I ask you to make the usual comments on the amendment, I would like to invite the representative of the NDP to read their amendment too, because their amendments are submendments to your amendments.

Now that we are informed of the main contents of your amendments, according to our procedural rules we should deal with the subamendements first.

I would like to invite Mr. Robinson to move his amendments and make the usual comments.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

The subamendment is really an attempt to clarify what I understand to be the intent of the Conservative amendment. Certainly we support this amendment wholeheartedly and the principles which lie behind it.

The purpose of the subamendment is to change Clause 5 so that it would read as follows:

Everyone has the right to have reasonable access to information under the control of any institution of the Government of Canada or any provincial or local government.

The only effect of that change is to make explicit that we are talking about all three levels of government. I do not know if Mr. Epp has had an opportunity to consider whether or not he is prepared to accept this proposed subamendment. Perhaps he may be, and if so certainly we would just deal with the amendment as proposed by Mr. Crombie and the Conservative Party.

[Page 103]

The Joint Chairman (Mr. Joyal): The honourable James McGrath.

Mr. McGrath: Mr. Chairman, if I can reply briefly to my honourable friend, the whole thrust of our argument is that whilst we are trying substantively to improve the Charter of Rights in front of us, the basic thrust of our position is that we should not ask Great Britain to unilaterally entrench a Charter of Rights in our constitution, but that we should go back to the table with the provinces.

Consequently, we would not be in favour of including provincial governments or provincial institutions within our freedom of information amendment until we had their approval.

I say this with respect, because what Mr. Robinson proposes to do smacks of the same kind of unilateralism that the government measure proposes.

Accordingly, we cannot support the subamendment, although we appreciate the fact that it is in line with the general philosophy of what we are trying to put forward tonight.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable James McGrath.

Mr. Robinson, we will have to proceed with your subamendment as you have moved it already.

Mr. Robinson: Thank you, Mr. Chairman.

I must confess to some surprise at the remarks of Mr. McGrath.

My understanding was that the position of his party was that the package should be split in two and that the Charter of Rights would be recommended to the governments ‘and that there would not be an imposition of this.

Certainly a number of other of the rights extend directly within the jurisdiction of provincial governments and I really confess to some mystification as to why this particular right, if it is really considered to be fundamental should stop with the federal government.

Surely, if the right to information is fundamental and access to information is fundamental, then that right should extend not just to the federal government but indeed to provincial as well as local governments.

That information is essential, and as I say, my understanding was that the package was to be split and the position the Conservative Party has taken heretofore has been based on that understanding, in an attempt to improve the Charter which they have indicated they would recommend to the provincial governments.

This represents a shift, as I perceive it, in their position. As I say, the right to access to information should not stop at the provincial legislature’s doors, particularly, Mr. Chairman, when it is the case, if the Conservative amendment were accepted, we could have a checkerboard of rights right across this country, with some provinces permitting access to information and other denying access to information. When you cross the provincial boundary you have the information that is

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required and in another province you are denied that information.

I thought that we were here to discuss what was the best possible charter for the people of Canada. The point at which that would be put forward, according to the Conservative Party differs, but as I say I am bound to confess to some confusion as to the logic there.

We believe, then, that this principle is vital, fundamental, and shoul extend to all organs of government-federal, provincial and local government.

The Joint Chairman (Mr. Joyal): The honourable James McGrath.

Mr. McGrath: Mr. Chairman, it is one thing to act unilaterally to impose your will on the second order of government in the country; but to create a third order of government, an order which is currently solely within the jurisdiction under our constitution of the provinces, and to impose the will of Parliament on the municipalities of the country without consultation goes beyond the scope of even what the government proposes.

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

Mr. Nystrom.

Mr. Nystrom: Just a short comment in response to what Mr. McGrath has said.

Under the Conservative proposal we are drafting now a charter that we are going to recommend to the charter which would be either approved or rejected by the provinces under the amending formula.

Many of the amendments that the Conservatives are proposing and many of the amendments that the Conservatives are accepting, are amendments which are going to directly affect the jurisdiction of the provinces. This is why they made it very clear that they do not want to do this unilaterally, but would like to refer it to the provinces and they may either accept or reject it.

My suggestion to my fellow Committee members is that the amendment moved by Mr. Robinson fits into the same category.

What we are trying to do is to draft the best charter of rights from our point of view. If the provinces reject that, then fine; they may do so.

It seems to me they can do that with anything else we are proposing here at this Committee, if indeed we accept the Conservative amendment and split this package later on.

I just wanted to make that point to Mr. McGrath and to other members that their point of view on this should not be coloured by the fact of whether or not it is going to be unilaterally imposing something else on the provinces.

If they took that attitude to the other amendments, they would be opposing absolutely everything else we are doing, because almost everything we are doing here is in one way or another interfering with provincial areas of jurisdiction.

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

The honourable, the Acting Minister of Justice.

Mr. Kaplan: Mr. Chairman, I am seeking the floor to explain the Government’s position on the subamendment and the amendment together. Is that appropriate now, or are we going to vote on the subamendment?

The Joint Chairman (Mr. Joyal): I understand, honourable Minister, that we will vote on the subamendment first and then on the amendment.

Mr. Kaplan: Well, the observations that I have to make apply to both and I would like to make them now-and I can do it very briefly.

I would like to indicate that the Government opposes this amendment to the Charter because of considering it a very serious abandonment by Parliament of a responsibility to deal with the question of access to information.

Our objection is not because we disagree that there should be a right of the citizen to have information. Far from it.

On that subject, we are putting our legislation where our position is, and we have made it clear to Canadians and tabled in the House a very substantial document which is quite similar to the document and to the approach which was taken by the Conservatives when they formed the government, although I think ours goes further in giving information and access to information of the citizens.

We think this is the proper approach to take, the Parliament of Canada and the other legislatures taking their responsibilities to establish proper rules and proper procedures for giving citizen access to information.

Just to look at this document, how complex and thick it is, illustrates the kind of problem that the proponents of this amendment would be giving to the courts of our country-a citizen, if we abandoned the legislative approach and turned to judicial determination, a citizen would go to court wanting a document, say, that touches national security, and the judge on the bench would have either to write this book from scratch without the benefit of a committee like the Justice Committee which could call witnesses and hear evidence and hear from officials and come up with a decision which relates only to the document that he is being asked to give access to.

The next citizen, wanting a document slightly different from some other ministry, would have to make a fresh approach to court.

One can well imagine the complicated process, the decades it might even take before a code were developed of the sort that we are in the process now of presenting and defending in Parliament and developing to the Canadian people.

This is a new area. It is an area in which I think legislatures are far more capable, and governments are far more capable of designing proper rules than are judges.

[Page 106]

I think legislative experience long before entrenchment should be contemplated.

Now, in saying that, I want in closing to concede that at some point in our history when this is legislated, when some other piece of legislation is legislated, it might very well be down the road in the development of our constitution, once the basic concept of freedom of information is developed, as they are in the process of being developed now, to talk about entrenchment, to discuss entrenchment now is to abandon a very serious legislative obligation that the Conservative government undertook and were unable to complete and which this government has undertaken and is determined to complete.

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

I would like to invite now the honourable Perrin Beatty.

Mr. Beatty: Mr. Chairman, I have listened to the Minister’s argument, a most convoluted argument against including it in a charter of rights.

The government, which the Minister is representing here this evening, has made the argument …

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

The Joint Chairman (Mr. Joyal): Yes, Mr. Robinson.

Mr. Robinson: I wonder if I can just get some clarification. I realize that the Minister has opened up the whole Clause in his statement; but I wonder if it might not be appropriate with respect to Mr. Beatty if we were to deal with the sub-amendment and then move on to the main amendment?

Mr. Beatty: I am agreeable to that, Mr. Chairman.

The Joint Chairman (Mr. Joyal): That is why I said very politely that we were voting now on the subamendment.

You are perfectly correct, Mr. Robinson; and I am happy that you have reminded the Chair that the Chair did remind you over the past few days, that we should address ourselves to the very wording of the amendment. I am pleased that you are helping the Chair tonight by so doing.

I would like to invite the honourable Perrin Beatty to address himself to the text of the subamendment.

Mr. Beatty: If we are on the subamendment, I wonder if I could defer to my friend, Senator Tremblay, and perhaps you could put me on the list for responding on our amendment; if that were possible I would be happy.

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Monsieur Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

I must admit that I have not quite grasped the thrust of the sub-amendment.

As I understand it, you want municipalities to be included in this right to information. In the text of the main amendment, that is already covered by the words “the control of any institution of any governement”. Under the present constitution, municipalities are provincial bodies

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Consequently, the phrase “of any institution of any government” includes municipalities in its application.

All your amendment does is make municipalities a third order of government, which cannot be done, I believe, unless, at the same time, a major amendment is brought to the present constitution. As it stands now municipalities are the exclusive jurisdiction of the provinces under Section 92.

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

I have the name of the honourable John Fraser on the subamendment.

Mr. Fraser: Well, Mr. Chairman, the only point I have to make, the question of getting into the area of municipalities is doing exactly what my colleague said, and that is that we are now literally by treating it, putting ourselves into the position of creating a third level under the constitution, and the municipalities are, after all, the creatures of the provincial governments and I would hope that just because we all wish freedom of information at every level of government, we do not complicate that endeavour by creating difficulties in the wording of an amendment that might go through that is going to run counter to the fundamental division of powers in the country.

I am in absolute agreement that freedom of information ought to extend to every level of government as we have stated, but I think that we have got to recognize that the two levels of government that we are dealing with in the constitution are the Government of Canada, the Government of the Provinces in their respective spheres, so I would just hope that all members of this Committee kept that in mind, and I am sure that none of us want to be misinterpreted here. We are not suggesting that there should not be freedom of information for municipalities also, but that municipalities by their very structure are institutions which owe their authority and their jurisdiction from that level of government which we in this Confederation have called provincial government and there is a consequence I would like to make that point and I would hope that all honourable members would accept it without jumping to the conclusion that that means there ought not to be freedom of information from that level.

However, it does complicate things if we are now, by virtue of amendments, literally putting into the constitution three levels of government under the constitution of Canada.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable John Fraser.

I have no more speakers on my list so I would like to invite Mr. Robinson to conclude on the proposed subamendment.

Mr. Robinson.

Mr. Robinson: Thank you very much, Mr. Chairman.

On the subamendment, I guess one could say it is getting curiouser and curiouser. Mr. McGrath had indicated that this amendment was not intended to apply to the provincial govern-

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ment or to local governments; he stated that very clearly. It was only to apply to the federal governments.

Then Senator Tremblay comes along and says: no, no, it is intended-oh, yes, the record will make that clear. Then Senator Tremblay comes along and suggests: no, it also applies to provincial governments. It also applies to provincial governments but it does not apply to local governments”because of the way that it is worded.

So, Mr. Chairman, with respect, I am not quite clear who is speaking on behalf of the Conservative Party, to use one of Mr. McGrath’s expressions …

Mr. McGrath: On a point of order.

I have too much respect for Mr. Robinson to accuse him of deliberately misleading anybody, but he is misleading the Committee tonight when he misquotes or misrepresents what I said.

What I said clearly was that the whole thrust of our position was to get back to the provinces with the Charter of Rights, but what he proposed was going beyond even what the government proposed and that is creating a third level of government which is, to use Senator Tremblay’s words, solely the creature of the provinces. And for that, clearly, you cannot include municipalities in freedom of information without some leave from the provinces. There has to be some order in what we are doing here and I do not think Mr. Robinson really intended to misrepresent me, but he did, quite frankly.

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

I would like to invite Mr. Robinson to conclude, and if possible to avoid opening a new debate.

Mr. Robinson: Yes, Mr. Chairman, I certainly would not wish to open a new debate, I was just attempting to seek some clarification on the position which was being taken.

Mr. Chairman, it has been suggested that we should not make reference to local government because somehow they are a third level of government. One of the realities of government in this country, as we heard so eloquently from the representatives of the Federation of Canadian Municipalities is that municipal government must be recognized in this country not as a subordinate level of government but as another level of government which has very fundamental and vital responsibilities in Canadian society, and a level of government which directly affects the lives of Canadian citizens.

So, Mr. Chairman, if it is accepted that the right to freedom of information is essential, I still fail to understand why that right should be denied at the local government level. It is for that reason that we are proposing this amendment, Mr. Chairman, and I should say also in conclusion that my understanding is even if this amendment should for some reason be rejected, that the Conservative Party is now prepared to extend freedom of information to provincial governments as well as to federal governments.

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

I would like to call the vote. All those in favour of the subamendment as proposed which reads:

That the proposed amendment to Clause 5 of the constitution act, 1980 be amended by striking out the words “institution of any government” and substituting the following:

institution of the government of Canada or any provincial or local government.

Subamendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to come back on the main amendment and invite the honourable James McGrath to make the usual presentation.

Mr. McGrath.

Mr. McGrath: Mr. Chairman, I merely want to take a few moments of the time of the Committee to reply, and I am sure my colleague Mr. Beatty wants to intervene as well, and probably Mr. Fraser, to reply to what the Minister had to say.

The Minister suggested that in some way this amendment to entrench freedom of information in the Charter would somehow pre-empt or prejudice the right of the House of Commons to legislate in this area. The same can be said about the whole Charter of Rights. We had evidence presented to the Committee to indicate that many people felt that the best way to protect rights was by the statute route as opposed to the constitution entrenchment route, and so I say to the Minister, through you, Mr. Chairman, with great respect, that that argument just does not wash, because what we are proposing to do is to enshrine in the constitution the principle of freedom of information. It would then require legislation to put that into practice.

In other words, you cannot have one without the other, and what we are asking the Committee to do is to enshrine the principle, which has already been accepted by the government because it did propose to legislate in this area, and to me it just makes sense to have it enshrined in the constitution so that the legislation, which will be complementary to the principle which we would enshrine, would then spell out the parameters or the regulations under which freedom of information would operate.

Now, I do not think I can go any further than that without over simplifying it.

Mr. Chairman, to conclude I want to point out to you that there were two groups that came before the Committee which strongly recommended that we enshrine the principle of freedom of information, The Canadian Council on Social Development, and they made the point that it would serve as a reminder to both governments and citizens that government exists only through and with the consent of the people.

The other group that appeared before us was the Canadian Bar Association, and they talked about the right to information being a twin right with the right to privacy.

We all know the extent of government in Canada, the growth of the bureau cracy and the threat that it imposes on

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the individual in terms of an individual’s right to know what the government knows about him. Forget all about the workings of government as we see it day to day in Parliament, just take it to the level of the individual, an individual could have a bad report made with respect to an investigation concerning a security matter or a credit matter or any matter you could think of, and with the computerization of information and the use of the SIN number by the government and by institutions, that wrong information in some cases or information no longer relevant could plague that person for the rest of his life and he, surely, under those circumstances would be entitled to know just exactly what was in his social insurance number file and he would have that right under the freedom of information.

Of course, the other well known arguments with respect to freedom of information regarding the government investigations and the ongoing day to day workings of the government are so well known to members it is not necessary to bring them out here, but I would suggest to the Minister, in conclusion, Mr. Chairman, that by voting to enshrine freedom of information in the constitution in no way interferes with or prejudices the right of the government to legislate, indeed it imposes upon the government an obligation to legislate in order to put in place the regulations to implement the principle that we would be enshrining in the constitution.

Tbe Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath.

The honourable Perrin Beatty.

Mr. Beatty: Mr. Chairman, I will take a third try at contributing to the evenings proceedings and I think perhaps I will have more luck.

Mr. Chairman, the Minister, when he made his argument, was making the argument that one hears from time to time made by opponents to the concept of an entrenced Charter of Rights, namely that the decision to have a Charter of Rights entrenched in the constitution takes away the responsibility from legislatures to legislate and gives it to the courts.

Mr. Chairman, the Committee and the government have both rejected that argument. We have taken the position that we believe that it is essential in this modern day and age that we recognize that some rights and responsibilities of citizens should be entrenched in the constitution itself and put beyond the whimsy of legislatures or of the House of Commons.

I notice the Minister’s phrase was, I believe, we were representing an abandonment of the government’s responsibilities. We are not proposing that the government abandon its responsibilities to the courts in some way to write legislation and freedom of information, but instead, as Mr. McGrath pointed out, what we are saying is that we are conferring a positive right to ownership or control of information to the people of Canada, and we are saying that, yes, indeed, governments at all levels in Canada have the responsibility to put the mechanisms in place to ensure that that right is respected. In much the same way, Mr. Chairman, that the constitution recognizes the rights of citizens to vote in our democracy.

It is not an abdication of the responsibilities of the legislature, the responsibilities of the House of Commons, to consti-

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tutionalize a right of citizens to partiCipate in democratic elections in Canada, and what it does do is it confers the responsibility upon legislatures and upon the Parliament of Canada to put the mechanisms in place for citizens to do so.

What we are suggesting is that we take a mechanism which is parallel, the government has a responsibility, a positive onus is put upon the government to legislate to ensure that this right is respected.

I want to just elaborate, perhaps, on the importance of this for a second because, Mr. Chairman, what we are doing is we are making a very fundamental statement about the role of citizens in Canada and about the role of government.

It has been my experience throughout your lifetime and mine that the attitude that has been taken by government, either about information relating to how citizens lives are affected by government decisions or how their money is being spent, or relating to their private affairs, this information belong to the government and the onus is upon the citizen to demonstrate that he has a right to have any control over it.

For example, the government has the right at the present time, the legal right, to coerce information from you about very personal affairs. For example, Statistics Canada has the right to do that. Various government departments have the right, the tax department, for example, to coerce payment from you on paying of penalty and you do not have the right to refuse that. The onus is put upon you as a citizen to justify denying the government the information which it is demanding.

By the same token, when it comes to information about how the government is spending your money or how it is making decisions which affect your life, the property right to information is deemed to be that of government and not of you as a citizen, and the onus is again put upon to justify access to this information relating to your day to day affairs to justify the fact that the government should give it to you.

What we are saying is that the constitution should recognize for the first time a very fundamental right and that is that if you look at the control of information as a property right, that information, either about ourselves as individuals or about the activities of our government which operates by consent of the people, that that property right belong not to the Government of Canada or the government of any province but to the people of Canada, and that the positive onus is put upon the government to justify either coercing private information about an individual from him or to justify withholding information from him in the name of the national interest or the provincial interest.

This is why, Mr. Chairman, I feel that when we are considering so many other rights for inclusion in the constitution, for example rights to vote, rights not to be discriminated against because of age, what we are asking the government to do, if they are determined to oppose the amendment that we are moving, is to tell us why these other rights are more compelling, are more important in a democracy to our citizens than the right to freedom of information, the right to control

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of information about ourselves, the right to access to information about how government conducts its activities.

We believe that this right is central in a democratic system of government, we believe that it in no way derogates from the government’s responsibility to pass legislation to give access to information; indeed, it confers that positive obligation and we feel that it is a right which is on a level, which is equal at least to that of the various other rights conferred in the constitution, that consequently should be included in the Charter of Rigths and that we should make this recognition of this very fundamental change in policy on the part of the government with this new constitution we are proposing for Canada.

Thank you, Mr. Chairman.

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

I would like to invite the honourable John Fraser.

Mr. Fraser: Thank you very much, Mr. Chairman.

Through you to the Minister and to my colleagues, the first thing that I think we should recognize in addition to what my colleague James McGrath said, and that was of course I think the classic statement in support of this particular amendment, and it was supported I think very effectively by my colleague Perrin Beatty.

I think the first thing we have to look at is that the amendment says thal everyone has the right to have reasonable access to information.

Now what kind of information. We have to ask that. It says information under the control of any institution of any government. Now, clearly, and I just want to make it awfully clear to my colleagues and through you, Mr. Chairman, and also the public that is watching us, is that that right to have reasonable access to information under the control of any institution, if this becomes the law of Canada and applicable in the provinces, will clearly include municipalities; they will not be left out, and I am sure that my honourable friends in the New Democratic Party do not intend to leave that impression, but I was a little bit worried, in the interjections that came from them a few minutes ago, they might have left the impression with the general public that freedom of information would not apply to municipalities because it clearly will under this amendment.

The second thing I want to say is this, and I say this with great respect to the Minister who is here with us tonight. He said words to this effect a few minutes ago; he said that if we put freedom of information into the constitution of Canada, and I am paraphrasing and if I have missed a few words I will apologize later, but I think I have got the thrust of it, he said that would be abandoning the serious responsibilities of Parliament to address freedom of information and he referred to the Freedom of Information Bill, which the government of which I was member introduced some time ago and which has now been reintroduced in a partially altered form by the present government.

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Now this is not an abandonment of the serious responsibility that any government has, to provide the mechanism by which the citizens of our country can get at the information which belongs to them, and I would hope that all honourable colleagues would understand the distinction. As my colleague, James McGrath just said, what we are doing here is stating a principle. We are enshrining the right of the citizen to have the information that is gathered by the bureaucracy and by the politicians, who after all, are all, no matter what level of government, paid and supported by all of the people of Canada. That is what the honourable James McGrath said a few minutes ago, that is the effect of what he said.

What we are trying to assert here, and my friend, the Minister, and I say that advisedly because we are friends, but my friend, the Minister, knows that by asserting a right does not, of course, under the constitution of Canada as it is being presented at this constitutional Committee, limit in any way the right of a provincial government or a federal government to legislate on the means by which that right will be carried out.

As a matter of fact, by putting the right into the constitution and again I come back to what my friend, the honourable James McGrath said, it imposes an obligation upon the House of Commons and also the provincial legislatures to pass legislation to bring about the implementation of the very right that we are now talking about, and my colleague has just said to me, “in a regulatory way” because you cannot have a right just hanging in the abstract. Somebody has to come along in front of a legislature, in front of either the House of Commons or the provincial legislature and somebody has to say, “Well, there is the right, we recognize that now. Canadians have decided that right to information is a right. Now we are going to try to find out how we implement it” because it is a complex thing. But I have to say, through you, Mr. Chairman, to my colleagues and to the public that is listening that if you do not put the right in now, we fail to persuade, under our proposal, the provinces agreed to this, we think they should, if we do not put the right in now, then at any time, the Parliament of Canada or any prl)vincial legislature can draw back and they do not have to pass this kind of legislation. Even if they do pass it, if it suits the mood of the moment, they can always restrict it and pull back on the rights. So to say through you, Mr. Chairman, I do not disagree with my friend, the Minister, who is here tonight, in any pejorative way; I just ask all honourable members to remember that it is not just enough to say we are passing a piece of legislation about freedom of information.

The reason we are having this whole debate is that when Mr. Diefenbaker of my own party introduced the Bill of Rights a lot of people felt it did not go far enough, it did not bind enough people and that there were limitations on it which the courts have used to restrict its effots, but if we do not put in freedom of information as a fundamental right along with the other fundamental rights that we have been talking about for many days here, many weeks, then there is no command to any level of government to do it.

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I just end on this mote, Mr. Chairman. There is nothing inconsistent about the fact that we have a freedom of information law before the present House of Commons and what we are asking is to enshrine the right of freedom of information into the constitution of Canada. Freedom of information law is the vehicle by which Canadians get the right to information. We just want to see that right asserted in the constitution of Canada. We want it to be applicable eventually and as soon as possible to both levels of governments.

The Joint Chairman (Mr. Joyal): Thank you very much, Honourable John Fraser.

Senator Tremblay, you wish to add something?

Senator Tremblay: I would just like to remind you of the provisions of Clause 1. All the rights listed in the proposed charter can be limited. It is clear that some of the problems or complexities mentioned by the minister will necessitate legislation restriting freedom of information; but the important point that was added to Clause 1 is that these limits must be reasonable and that they must be demonstrably justified in a free and democratic society.

I wanted to mention that aspect to point out that no absolute right was involved. Instead, it is a right which can be limited by necessary legislation as long as that legislation is reasonably and can be demonstrably justified in a free and democractic society.

That was all I wanted to say, Mr. Chairman.

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

Mr. Robinson: Thank you, Mr. Chairman.

I certainly listened with interest to the remarks of Messrs. Beatty and Fraser and Senator Tremblay. I believe that all three of them dealt very eloquently with a number of the points I was going to raise. I will not repeat them. I do believe that they certainly dealt fully with the suggestion by the Minister that somehow this represented an abandonment of the government’s re~ponsibilities in the area of freedom of information.

As has been pointed out, we are merely enshrining in the constitution the recognition of this fundamental principle, the principle of the right of access of all to information.

Mr. Chairman, Mr. Beatty referred to certain other rights and made specific reference to the right to vote and asked quite properly why the right to freedom of information should be considered any less important. I would like to look at it from a slightly different angle and to suggest that the right to vote is surely predicated on access to information, that an informed citizen is essential for the proper exercise of democracy, and that if a government can withdraw information at will, be that a federal or a provincial or municipal government, or choose what information that government wants to give to its citizens, then how can it be argued that they have all of the information that is required to make an informed decision as to who can best represent their interest in Parliament or

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legislative assemblies; or for that matter, when we talk about the freedom of the press, how can it be argued that the full freedom of the press can be exercised when the press, who have a unique responsibility in society, are regularly denied information, basic information which they may wish to pass on to the people of Canada.

I would suggest that as well as being an essential principle in its own right, that if we are to fully recognize the principles contained in other sections of this proposed Charter, that we must include the principle of freedom of information.

Senator Tremblay has pointed out that it is very broadly worded. There is a reasonableness limitation. We are not talking about some sweeping imposition of harsh measures; we are talking about recognizing a fundamental principle, a principle, incidentally, which was championed valiantly and for a long time by Ged Baldwin, and I am sure all members around this table would recognize his contribution in this debate which led directly to the tabling of freedom of information legislation for the first time by the last government.

Mr. Chairman, the Minister has suggested that legislation is on the table and he has brought out the bill and pointed to the fact that it is a hefty bill, but what the government gives on the one hand it can take away on the other.

I would quote from the Minister of Justice who indicated in his July statement that in referring to certain legal rights, that:

they are not mandatory and although they are recognized in law, they could be changed as the result of a decision of Parliament or in some cases, of a legislature.

So to suggest that because there are certain legislations pending at the federal level that somehow that is adequate, Mr. Chairman, I submit it does not adequately deal with the problem, because that legislation, for one thing, has not even been brought forward for second reading. We have been waiting six months for that legislation and that legislation could be repealed tomorrow.

So, Mr. Chairman, we need a principle recognized in this constitution, the principle that all persons in Canada have access to information.

I would like to just conclude, Mr. Chairman, if I may by referring to a quote which I take from the excellent report of the Canadian Bar Association, Towards a New Canada and they indicate that they have for some time been championing the political right of freedom of information. They quote Ralph Nader as saying, and I quote:

“A well informed citizenry is the lifeblood of democracy”. The democratic process cannot function adequately without timely information about the activities of Parliament.

And that would apply equally to provincial legislatures. I would hope, Mr. Chairman, that this fundamental principle,

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this principle which is so essential in Canadian democracy would be recognized in this statement of what purports to be fundamental Rights and Freedoms.

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

I see that honourable members are ready for the vote. would like then to call the vote on the proposed motion.

Mr. Epp: A recorded vote, please.

The Joint Chairman (Mr. Joyal): On the recorded vote, certainly, Honourable Jake Epp.

I would like then to invite the Clerk of the Senate to call the vote, please, and I will inform, meanwhile, Honourable Senator Yuzyk that we have found his ticket and he will be on the vote this time. So there has been a short intermission but you will be in for the last part of the show, Senator Yuzyk.

Senator Yuzyk: Mr. Chairman, may I thank you for that ticket to the opera or circus or whatever it is, but I appreciate having the right to vote.

The Joint Chairman (Mr. Joyal): You are most welcome, Senator Yuzyk. I would like then to call the Clerk of the Senate.

Amendment negatived; yeas, 10; nays, 14. The Joint Chairman (Mr. Joyal): The motion is defeated by a vote of 10 to 14.

Clause 5 as amended agreed to.

On Clause 6-Rights of citizens to move.

The Joint Chairman (Mr. Joyal): On Clause 6, I have two amendments. Those two amendments are proposed by the NDP Party and they are numbered on your sheet N-8, Clause 6, page 4 and I would like to invite the representatives of the NDP to move the amendments with the proviso that there has been a small correction, and I hope that Mr. Robinson has the correction that I am referring to which is to change a word, the last line that reads,

Renumbering Clauses 6(2) and 6(3)

and substitute the word “and” for “as”. I think it makes sense, otherwise it is something that one cannot understand.

So I would like to invite Mr. Robinson to go ahead with the presentation of his amendment.

Mr. Robinson: Thank you, Mr. Chairman.

I move that Clause 6 of the proposed constitution Act, 1980 be amended by

(a) adding immediately after line 5 on page 4 the following:
(2) Canadian citizenship that is lawfully acquired is inalienable;
(b) renumbering sections 6(2) and 6(3) as subsections 6(3) and 6(4) respectively.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I understand that you would like to read the English version, too.

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Mr. Robinson: I thought there was simultaneous translation, Mr. Chairman. Perhaps they could not follow me.

I will read the English version as well, if you so desire.

The English version is as follows:

That Clause 6 of the proposed constitution act, 1980 be amended by
(a) adding immediately after line 5 on page 4 the following:
“(2) Canadian citizenship that is lawfully acquired is inalienable.”
(b) renumbering Clauses 6(2) and 6(3) as Clauses 6(3) and 6{4) respectively.

That is moved, Mr. Chairman, and I will just speak very briefly to this proposed amendment. I would first like to indicate, Mr. Chairman, that this amendment is proposed following upon the recommendations of the special Committee chaired by Senator Molgat and Mark MacGuigan, reporting on the Victoria Charter in 1972. This was referred to earlier by the Acting Minister of Justice as being an authoritative source, certainly on another point. I trust that the wisdom which was applicable in that instance may well extend to this particular point.

Mr. Chairman, what is suggested is that with respect to the Victoria Charter that, and I quote from the report,

In Canada, a nation of immigrants, it is entirely fitting that the constitution should provide that citizenship, once legally acquired, should be inalienable.

Mr. Chairman, I think this is a particularly important amendment in view of the fact the concept of citizenship is central to a number of other concerns. For example, in Clause 3 of the proposed Charter of Rights, it is every citizen of Canada who has the right to vote in an election of the members of the House of Commons or of a legislative assembly. Nowhere is this concept of citizen defined. So by defining citizen in an arbitrary manner, the fundamental right to vote, to hold office or to be a candidate for election could be tampered with.

So Mr. Chairman, It is fundamental, I believe, and also in other provisions in clause 6 there is the reference to citizens of Canada, but nowhere is this defined in the Charter. It would remain to be defined presumably by the Parliament of Canada as Parliament so desires. In order to recognize the fundamental importance of this right, citizenship once lawfully acquired cannot be taken away by the government, cannot be stripped away, a citizen cannot be exiled, for example, this amendment is being proposed.

Now, an argument may be made that there are problems with dual citizenship. Well, Mr. Chairman, if that is the case, if there is a serious concern about dual citizenship and evolving law in that particular area, if that limitation on this right can be demonstrably justified and is reasonable pursuant to the

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provisions of Clause 1, then it can be defended. If not, it would be struck down and it would deserve to be struck down.

Mr. Chairman, Clause 1 applies to the proposed amendment which we are moving to Clause 6, and I would comment it to members of this Committee.

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

Do I see any other speakers? Yes, honourable Jake Epp.

Mr. Epp: Mr. Chairman, I understand that you have accepted only the first amendment to Clause 6, namely the citizenship and we will be supporting the NDP amendment.

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

Mr. Irwin.

Mr. Irwin: Just briefly, Mr. Chairman, because it is getting late. I would like to set out our position on this particular clause.

This constitutional hearing has almost had a life of its own from a simple idea of a patriatian with a formula; we got into minority language rights, charter rights …

Mr. McGrath: I see more of you than I see of my wife.

Mr. Irwin: No, I see that I was here 61 times and you were here just a few less than that.

Mr. McGrath: That is right, that is what I am saying, I see more of you than I see of my wife.

Mr. Irwin: I have only seen my wife about 20 times within that 61 times, so that is a possibility.

The Joint Chairman (Mr. Joyal): I know, Mr. Irwin, that the Solicitor General is with us too and there is a new initiative in the penitentiary system which is the contact visit.

Mr. Irwin: As long as I am given conjugal rights, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Go ahead, Mr. Irwin.

Mr. Irwin: Now, what has happened is in fact from a very simple concept; we have had groups come from across Canada, hundreds of them, and wanting to add on, add on, add on, and I quite agree with many of the things that the NDP Party has done and especially on aboriginal rights. But there are certain things that are not ready to go into that charter. We cannot enshrine everything in Canada. Today we heard “God”, “union”, “citizenship” as if we were opposed to those things. If we were opposed to those things, we would not be with our back up against the wall trying to get these rights through.

Now what is wrong with what you are saying? First of all, you have legislation now that says, for instance, Section 7 of the Citizenship Act that you can lose your citizenship abroad if you are the child of a Canadian citizen who is born abroad, in other words, a grandchild, unless by the time you are 28 you

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apply. Now what would happen to that? That would go by the board, tha.t legislation.

We have legislation in other countries, especially the United States, where you are required to renounce your Canadian citizenship. Now what do we do with Canadians who want to go to the States. If it is an inalienable right, as you say, then they will not be able to renounce that citizenship and become an American citizen. The list goes on and on, income tax, dual citizenship.

I think, really, your morals are good but your definition, at this point, is not well conceived and I do not think that we are prepared to keep throwing more and more and more things in because they smack of apple pie and motherhood. I think our charter is a good charter now and it has your support and I think we should get it on and over with and then start dealing with many of these things that have been espoused, the marital status, the handicapped, the Section 133 provisions in Ontario. We just cannot put every good thing, as you can conceive, like a shopping list because that is what it is at this late stage, a shopping list, this particular Charter, no matter how well intentioned your motives are.

Thank you, Mr. Chairman, and consequently, we cannot support this particular amendment.

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

Mr. Robinson, to conclude on the proposed amendment.

Mr. Robinson: Mr. Chairman, I just wanted. to respond to the suggestion made by Mr. Irwin that somehow Section 7 of the Citizenship Act might be affected by this or that, that this particular right, which we regard as a fundamental right, certainly, is somehow not that essential. We had perhaps one of the most moving and most eloquent presentations made to us by the Japanese Canadians, Canadians of Japanese origin who pointed out the atrocities that had occurred to them during and after World War II.

If this amendment is not accepted, a possible consequence could be that citizenship could be stripped totally arbitrarily from persons who are Canadian citizens.

It could be argued that Clause 15 might apply in those circumstances; but I think we have to recognize that there is still a very serious concern about that particular aspect: Clause 15 does deal with race, but it is possible that there could be other grounds of discrimination in dealing with the area of citizenship. Mr. Chairman, it would be important that we recognize the fundamental right of citizenship and should defend it as being inalienable, and subject only to the demonstrable justifiability test.

The Joint Chairman (Mr. Joyal): Thank you Mr. Robinson. I would like to call the vote on the proposed motion.

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Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like to invite the representatives of the NDP party to move the next amendment which identified as N-9, Clause 6, page 4.

The Honourable Senator Tremblay.

Senator Tremblay: On a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): The Honourable Senator Tremblay on a point of order.

Senator Tremblay: Perhaps I should have raised this point earlier. It is strictly a matter of form.

When we prepared our amendments, drafting specialists, after the government had tabled the initial text of its amendment, asked us to formulate our amendments as amendments to the proposed government amendments.

I simply want to bring your attention to this, and my intention is not to create problems of procedure, but only to confirm if this is the manner in which our amendments must be drafted, and if so, our friends from the NDP Party could stand their amendments so they will not be declared inadmissible, if I am right.

The Joint Chairman (Mr. Joyal): I think that the draft version from the Department of Justice who are helping the representatives of the NDP, have taken into account that there are already proposed amendments to the main text, and so, of course, the amendments proposed by the New Democratic Party are prepared to some extent, as amendments to the amendments already proposed by the government, for which we already have the text.

Senator Tremblay: So when amendments are not drafted as the ones before us, the legal services check out the technical aspects.

Le copresident (M. Joyal): Essentiellement, oui. I would like then to invite …

Mr. Bockstael: On a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Bockstael, a point or order.

Mr. Bockstael: I would like to point out to you, Mr. Chairman, that you were one of the fortunate ones. You get these amendments in writing; but we still do not have the next amendment in writing.

This ad hoc system of the NDP giving us little titbits at a time without any opportunity to peruse the amendment is not very practical.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Bockstael. I will make sure that the proper amendments are circulated. I would like to point out that the amendment we are dealing with now is the one identified as N-9, Clause 6, page 4.

I will make sure that sufficient copies are provided to honourable members so that they would be in a position to

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understand and debate appropriately the contents of the proposed amendment.

It will not be long Mr. Bockstael. I would like to point out, too, that it is a major point, that if we want to give proper consideration to an amendment, then members should have it at least in sufficient time to be able to read and think about it.

I see that all honourable members have a copy of the proposed amendment, and I would like now to invite Mr. Ittinuar to make the usual presentation.

Mr. Ittinuar.

Mr. Ittinuar: Thank you, Mr. Chairman.

I move that Clause 6 of the proposed constitution act, 1980 be amended by (a) striking out the word “and” at the end of Clause 6(3) (a) on page 4; and (b) striking out line 23 on page 4 and substituting the following:

services; and

(c) any laws or practices that are reasonably justifiable for the purpose of mitigating any environmental or social impact of any activity on the community, culture, economy or society of any of the aboriginal peoples of Canada.

Mr. Chairman, I would like to have my colleague, Mr. Lorne Nystrom, read this in French parce que je ne parle pas francais.

Mr. Nystrom: Thank you, Mr. Chairman. It is moved:

Que !’article 6 du projet de loi constitutionnel de 1980 soit modifie par substitution aux !ignes 22 a 24 de ce qui suit:

(c) caux lois et usages dont Ia raison d’etre se justifie par le souci d’attenuer les consequences ecologiques ou sociales defavorables de toute activite susceptible de toucher Ies peuples autochtones du Canada sur les plans collectif, culture!, economique ou associatif.»

And now, with your permission, I will let Mr. Ittinuar explain his amendment to the members of the committee. Thank you

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

Mr. Ittinuar: A very brief comment, Mr. Chairman, in support of this amendment.

This was proposed to this Committee by the Inuit Committee on National Issues on behalf of the Inuit population of Canada.

I would also point out that four major groups from North of 60°, from the Yukon Territory and the Northwest Territories made similar proposals, particularly the Council of Yukon Indians, the Yukon territorial government, the Northwest Territorial Government and the Inuit Tapirisat of Canada all made similar proposals as amendments to this Charter to this Committee.

I believe that speaks fairly well for the truthfulnes of this proposed amendment.

Perhaps one of the most famous examples of this, why there should be this kind of amendment in the constitution is the famour Berger Commission. We are not trying to stop com

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-pletely any development in the North. We are not trying to stop completely the influx of masses of workers into the North.

However, we are trying to mellow it out so that northern culture is preserved; and by “northern culture” I do not mean that it will be an ethnic or racial state or any other kind of state where there are lines based upon human differences. There are none.

People in the North are comprised of all colours, races, creeds, mores and customs.

Neither the Yukon territorial government nor the Northwest Territorial government is known for their humanist values in the North. However, they saw the need to include such clauses in the constitution proposed to you, that they should be well understood by members of this Joint Committee. The North is easily the most susceptible to development in terms of impact on the areas of environment, social, cultural and economic and linguistic problems.

I would ask this Committee to understand the fact that there has already been cases in which language has been lost, especially in the case of the Western Arctic, Inuvik and those areas.

If there is anything more to be said on this, it is that if the Joint Committee does not agree to such amendment-and I do not like to impose any sort of blame on anybody for any impending situation anywhere; however, I think members of this Joint Committee may be compelled to feel that any impending destruction of culture and society in the North could well be blamed to members of this Committee and any decisions after this.

Thank you, Mr. Chairman.

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

Mr. Nystrom.

Mr. Nystrom: I want to begin by picking up on a point made by Bob Bockstael and saying very seriously that I think we are dealing with one of the more important amendments to come before this Committee.

If Committee members do not believe that they have had enough time to consider it seriously, perhaps when we have finished with our discussion, we could consider standing it rather than making a very quick decision in rejecting it.

I say that, because the amendment here is no surprise. It was recommended, as my colleague, Peter lttinuar has said, by four groups which came before our Committee, namely the Inuit peoples, the Indian peoples in the Yukon and the territorial governments of the two territories.

I am convinced that that is a very important amendment for the North of this country, not just to the Inuit or Indian people, but to all people in Northern Canada.

So if some members have not had an opportunity to study it thoroughly, I think rather than just saying “No”, because of the pressure of time or the lack of time to reflect on it, perhaps we could just stand it, Mr. Chairman.

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I would like to make four or five arguments that I think members should consider.

Mr. McGrath: On a point of order.

The Joint Chairman (Mr. Joyal): The honourable Mr. McGrath on a point of order.

Mr. McGrath: I listened to my colleague, Mr. lttinuar, introduce a motion. I then expected an intervention from the government side in reply to Mr. Ittinuar; and then perhaps we would go to our side when one of my colleagues would reply, and then we go back to the NDP. That seems to me to be an orderly way in which to conduct the debate.

Now we are getting two major interventions and that is the second time it has happened today one after the other.

If that is the way we intend to proceed, then fine. but would just like to point out that this is not really conducive to good debate.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath. I think the point you have made is very appropriate. I would ensure that we have a debate which provides more opportunities to favour an exchange of view.

In that respect, I would like to invite Mr. Irwin, as Parliamentary Secretary, to answer to the proposed amendment as explained and commented upon by Mr. Ittinuar.

Mr. Irwin: Thank you, Mr. Chairman.

First of all, I would like to say to Mr. Ittunuar, that I do not think there is a member of this Joint Committee on either side of the House who was not touched by the 17 delegations that we heard-everything from the Micmac of Newfoundland to the Indians of British Columbia of which Mr. Fraser knows so much.

I think, though, that process, a great deal of progress was made, and I was very pleased with the inclusion of at least the word “aboriginal” for the first time in an official document. It could not even make a by itself substantive judgement in the Supreme Court of Canada.

I was very pleased that there was some movement on the part of the government in that respect. I was also very pleased that money was allocated for investigation and that the Prime Minister is prepared to talk about the various Indian problems at the First Ministers’ conference.

However, having said that, I would like to say there are things which bother us about this particular amendment. What does the phrase “reasonably justifiable” mean? Is it subject to the standard in Clause 1? What is the economy of the aboriginal people? What is the culture? What is the society of the aboriginal people?

Do we want a provision in the constitution based solely on race?

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On the northern pipeline, for instance, there are at present clauses which restrict employment to natives and women and residents in that area. We do not support that.

We support natives and women, but not to specific residents in that particular area. We think it should be open to all natives, and all women in Canada.

So we do have some philosophical differences on this particular clause.

While we are trying to balance mobility and culture-which is very important, culture; you can trace my track record for the past five years when I was going around the country saying exactly the same thing, when I was on the CRTC-having looked at that balance, we are not prepared as this time to support this particular clause.

Thank you, Mr. Chairman.

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

I would like to invite the honourable Jake Epp on the proposed amendment.

Mr. Epp.

Mr. Epp: Thank you, Mr. Chairman.

This amendment which has been put forward by my friend, Mr. lttinuar, is one which I think is put forward with a lot of sincerity, and is also a reflection of the development of northern Canada as it is seen in the eyes of many people there who want development but in such a way that they could retin their culture.

I must admit, Mr. Chairman-and I am not trying to stretch the limits of your indulgence-that I find whole question of Clause 6, the mobility clause, very difficult; because while I support mobility in principle-and I will refer to that when I get to the clause-1 feel this is one clause where we have not spent sufficient time on in terms of witnesses and of evidence.

There may be members of the Committee who may disagree with me on that; but I think the record would indicate that there is some truth to what I have said.

It is for this reason, Mr. Chairman, that I was hoping that we would have a Minister of employment and immigration before the Committee, because this matter has far-reaching impact on not only the North, and specifically on the North, but it goes well beyond that.

If we were to ask the Canadian people, “Are you in favour of mobility rights?” And went on to say that mobility rights are interpreted that you have the right to travel anywhere in Canada and to hold a job or to have a business, then the answer it yes-almost 100 per cent. I think members around this Committee table would have very little difficulty with that concept in that philosophical framework.

[Page 125]

But you run into two problems once you leave that. One problem you run into is the long discussion which took place this summer in the topic known as “Powers over the economy”. There was no agreement between the federal and provincial governments on that topic.

Here we are now thrust into that debate, the debate not having ended or taken to any conclusion or resolution; and we are suddenly thrust into it and we are now to make a decision.

Now, we on this side can say that at least we are not caught in the same dilemma as the government and the NDP because we will not support the imposition and we will refer the whole matter back to the provinces at the appropriate time through a motion.

But that does not take care of the problems of Mr. Ittinuar and the residents north of 60°.

There is, without question, a need-and I am speaking specifically to the amendment now-a need to protect the environment, to be conscience of the social impact of development, and at the same time balancing development in that area, and the need for development.

I am worried frankly that if this were to pass-and I say this to Mr. Ittinuar; he and I have established a relationship where we can have these discussions-it worries me that we would have the same difficulty if this were passed-the same difficulty across the north as the difficulty which l feel has developed through the Berger Commission.

While there has been certain advantages from the Berger Commission, there has been-and we should be blunt about it-difficulty on individual lives and individual development through the MacKenzie Valley.

That is just the reality that we face.

For instance, in legislation-and I thought Mr. Irwin made the case very well for us-in legislation in many of these areas of social policy it would be much better to leave it to the legislators, to Parliaments, the legislative assemblies to pass legislation like the Northern Pipeline Agency Act, where we then have in fact incorporated a number of these principles in legislation for a specific project. I support that.

To put it in the constitution and to be able to use now that constitutional provision, to literally freeze the north through litigation, I do not think is of service to the northern people and when I say that I fully admit to Mr. Ittinuar immediately that I am not addressing specifically his problem either.

So, what I say to you, Mr. Chairman, is that the intention is good, but while it is so broad I want to come back when this amendment has been taken care of to get into the question of mobility, because I have many questions as to how do we protect the North, the residents of the North, not only the social impact of development but that proper development can take place and they can have some advantages.

[Page 126]

I disagree frankly with Mr. Irwin when he says that he is not in favour of summer residency requirement. I say to you, in all frankness, the 25,000 people in the Yukon or the 45,000 in the Northwest Territories, if you are not going to have some provisions whereby they can have some advantage from the economic development which is going to take place in that area, some protection, then you are not recognizing the reality that exists there.

I say to you frankly that if that is not addressed around this table and not at three minutes to 10 o’clock one evening, then we are not doing justice to those people or to Canada and some of us very firmly believe that the future of Canada is north of 60. But I think that future is to be orderly.

I say to Mr. Ittinuar, with as much frankness as I can muster, that there are many of the principles I endorse and support which you have in your amendment.

I disagree with their inclusion at this stage, but I would say that I would want to get back to the mobility question because you have some valid points and somehow we have to cover the mobility question. You are right on that.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable Jake Epp.

I would like now to invite the honourable Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman. I would like to continue with the comments I started a few minutes ago.

First of all, since I feel so strongly about this issue, I would like to pick up on an argument that Mr. Epp was making that he should be leaving some of this to the legislatures.

I would like to point out that, in my opinion, in this case we are not dealing with an area of Canada that is a province. The Northwest Territories are a territory. They do not have a provincial legislature.

If they were to try to pass legislation in the territories, despite the fact that they are not a province, then they are up against that disadvantage to begin with.

They are also up against the additional disadvantage that we have already passed, assuming that this goes through, a charter of rights in our constitution which calls for mobility rights, and the mobility rights here are pretty strong, saying that every citizen of Canada and every person who has the status of a resident has the right to move to and take up residence in any province and to pursue the gaining of a livelihood in any province.

I gather from your earlier explanation that this also applies to the territories.

[Page 127]

So, I would think with respect to Mr. Epp, I would think if this charter of rights goes through as written, that the Northwest Territories, indeed the Yukon, would have very little clout; it would be a loaded dice-a stacked deck in essence for the people of the north.

Since it is getting very close to 10 o’clock, I would like to request or suggest, rather, that members think about this over the evening and come back tomorrow morning, because it is a very important issue.

What Mr. Ittinuar is saying here is that this is not something that is absolute. If you were to check the wording here you will see that he and his people are applying and suggesting that there be a reasonableness test, and that any laws or practices which are reasonably justifiable-so if something is not reasonable it can be struck down by the courts. So you have to be reasonable, and you cannot be extreme or foolish. We always have that protection.

The other matter is that in Mr. lttinuar’s amendment, what he is suggesting is also subject to the rights in Clause 6(2). Clause 6(2) of course, concerns itself with the mobility rights, the freedom to move in any province, to settle in any province and so on.

So what he is suggesting here is subject to all of those rights.

I think, Mr. Chairman, that there is adequate protection there. He is not trying to build a wall around the North or turn it into a ghetto for the people living there now. He has made that very, very clear.

Perhaps if there is some doubt with regard to the specific wording, perhaps we can get some of the experts to clarify it.

But the arguments of Mr. Ittinuar are very important, very important for the way of life in the north. The way of life in the North can be easily disrupted by the huge projects, by a lot of people coming in from the south, bringing several thousand workers with all the problems that creates in northern Canada where there are not many people. It can be a tremendous disruption on the lifestyle of the north and on the social impact in the north, the culture, the economy of the north.

We all know of circumstances and situations where it has already happened.

The second point that Mr. Ittinuar has mentioned which, in my opinion, is vitally important is the area of the environment.

We all know the problems of the permafrost in the north, the fragility of the environment and if you have a project-and I see I am being cut off, Mr. Chairman; it is a couple of minutes after ten o’clock. Perhaps we will call it 10 o’clock and deal with this tomorrow morning.

The Joint Chairman (Mr. Joyal): We will adjourn to 9:30 tomorrow morning.

La seance est levee.


WITNESSES-TEMOINS

From the Department of Justice:

Mr. Roger Tasse, Q.C., Deputy Minister;
Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.


Other Issues:

Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14* 15 16 17 18 19
20 21 22 23 24 25 26* 27 28 29
30 31 32 33 34 35 36 37 38 39
40 41 42 43 44 45 46 47 48 49
50 51 52 53 54 55 56 57

*On Order — Available Soon


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