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 46 (27 January 1981)

1981-01-27 5 Comments

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Date: 1981-01-27
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 46 (27 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 46

Tuesday, January 27, 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 Jean Chrétien,
Minister of Justice and Attorney
General of Canada

WITNESSES:

(See back cover)

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:

Asselin
Austin
Lapointe
Lucier
Petten
Roblin
Rousseau
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Fraser
Irwin
Lapierre
Mackasey
McGrath
Nystrom
Robinson (Burnaby)
Tobin—15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Tuesday, January 27, 1981

Mr. Crombie replaced Mr. Munro (Esquimalt-Saanich);
Mr. Bockstael replaced Mr. Dion (Portneuf);
Mr. Tobin replaced Mr. Gingras;
Mr. Ittinuar replaced Mr. Nystrom;
Mr. Nystrom replaced Mr. Robinson (Burnaby);
Mr. Robinson (Burnaby) replaced Mr. Nystrom;
Mr. Nystrom replaced Mr. Ittinuar.

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

On Tuesday, January 27, 1981

Senator Wood replaced Senator Connolly.

[Page 3]

MINUTES OF PROCEEDINGS

TUESDAY, JANUARY 27, 1981
(81)

The Special Joint Committee on the Constitution of Canada met this day at 9:40 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Gingras, Irwin, Joyal, Lapierre, Mackasey, 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 Jean Chrétien, Minister of Justice and Attorney General of Canada.

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister, Dr. B. L. Strayer, Assistant Deputy Minister, Public Law, and Mr. Fred Jordan, Senior Counsel, 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 the motion of Mr. Beatty,—That Clause 7 of the proposed Constitution Act, 1980 be amended by striking out lines 24 to 27 on page 4 and substituting the following:

“7. Everyone has the right to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except in accordance with principles of natural justice.”

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

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

YEAS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath—8

[Page 4]

NAYS:

The Honourable Senators

Austin
Connolly
Hays
Lapointe
Lucier
Petten
Rousseau

NAYS:

Messrs.

Campbell (Miss) (South West Nova)
Bockstael
Corbin
Gingras
Irwin
Mackasey
Nystrom
Robinson (Burnaby)—15

Mr. Robinson (Burnaby) moved,—That Clause 7 be amended by adding thereto immediately after the word «justice» the following:

“including the principles of due process of law.”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 2; NAYS: 18.

Mr. Robinson (Burnaby) moved,—That clause 7 of the proposed Constitution Act, 1980 be amended by

(a) adding immediately after line 27 on page 4

“8. Everyone has the right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations”;

(b) adding immediately after the proposed new clause (8) the following:

“9. Everyone has the right to protection against arbitrary or unreasonable interference with privacy.”; and

After debate, the question being put on part (a) of the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

YEAS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath
Nystrom
Robinson (Burnaby)—10

NAYS:

The Honourable Senators

Austin
Connolly
Hays
Lapointe
Lucier
Petten
Rousseau

[Page 5]

NAYS:

Messrs.

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

At 12:02 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(82)

The Special Joint Committee on the Constitution of Canada met this day at 3:47 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Hays, Lapointe, Lucier, Petten, Roblin and Rousseau.

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

In attendance: From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.

Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada.

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister, Dr. B. L. Strayer, Assistant Deputy Minister, Public Law and Mr. Fred Jordan, Senior Counsel, Public Law.

The Chairman presented the Sixth Report of the Sub-committee on Agenda and Procedure which reads as follows:

Your Sub-committee met on Tuesday, January 27, 1981 and agreed to make the following recommendations:

(A)—That with respect to the matter of time allocation to be given to the consideration of the Joint Resolution,

1. the mover of any amendment or sub-amendment shall be entitled to a maximum of 5 minutes to present the amendment or sub-amendment;

2. members of the Joint Committee shall be entitled to speak once only to any amendment or sub-amendment and for a maximum time of 3 minutes;

[Page 6]

3. the mover of any amendment or sub-amendment shall be entitled to a maximum of 3 minutes to conclude;

4. members of the Committee shall be entitled to a question to the Minister on a clause with a supplementary question to be allowed at the discretion of the Chair.

(B)—That the sitting hours of this Joint Committee be as follows:

Tuesday, January 27, 1981

3:30 p.m. to 6:00 pm.
8:00 p.m. to 10:30 p.m.

Wednesday, January 28, 1981

3:30 p.m, to 6:00 pm.
8:00 p.m. to 10:30 p.m.

Thursday, January 29, 1981

9:30 am. to 12:30 pm.
3:30 pm. to 6:00 pm.
8:00 pm. to 10:30 p.m.

(C)—That the Sub-committee on Agenda and Procedure meet on Thursday, January 29, 1981 at 6:00 o’clock pm. to evaluate progress.

After debate, on motion of Mr. McGrath the Sixth Report of the Sub-committee on Agenda and Procedure was concurred in.

The Committee resumed consideration of the motion of Mr. Robinson (Burnaby),—That Clause 7 be amended by adding immediately after Clause 7 the following new Clause:

“8. Everyone has the right to protection against arbitrary or unreasonable interference with privacy.”

By unanimous consent, on motion of Mr. Crombie, the amendment was amended by adding after the word “privacy” the following words:

“, family home and correspondence”

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

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

YEAS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath
Robinson (Burnaby)—9

[Page 7]

NAYS:

The Honourable Senators

Austin
Connolly
Hays
Lapointe
Lucier
Petten
Rousseau

NAYS:

Messrs.

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

Clause 7 carried.

The Committee resumed consideration of Clause 6 and the motion of Mr. Ittinuar,—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.”

At 6:00 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING
(83)

The Special Joint Committee on the Constitution of Canada met this day at 8:13 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Hays, Lapointe, Lucier, Petten, Rousseau, Tremblay and Wood.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs, Corbin, Epp, Fraser, Irwin, Ittinuar, Joyal, Lapierre, Mackasey, McGrath, Robinson (Burnaby) and Tobin.

Other Members present: Messrs. Allmand, Friesen and Manly.

In attendance: From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.

Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada.

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister; Dr. B. L. Strayer, Assistant Deputy Minister, Public Law; Mr. Fred Jordan, Senior Counsel, Public Law and Mr. E. G. Ewaschuck, Director, Criminal Law, Amendments Section.

[Page 8]

lution 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 6 and the motion of Mr. Ittinuar,—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, the question being put on the amendment, it was negatived on the following division:

YEAS:

Messrs.

Fraser
Ittinuar
Robinson (Burnaby)—3

NAYS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Rousseau
Tremblay
Wood

NAYS:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Epp
Irwin
Lapierre
Tobin
Mackasey
McGrath—18

Clause 6 carried.

On Clause 8 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 8 of the proposed Constitution Act, 1980 be amended by striking out lines 28 to 31 on page 4 and substituting the following:

“8. Everyone has the right to be secure against unreasonable search or seizure.”

Mr. Robinson (Burnaby) moved,—That the proposed amendment to Clause 8 of the proposed Constitution Act, 1980 be amended by striking all the words after the word “right” and substituting the following:

“not to be subjected to unreasonable search or seizure of person or property.”

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

[Page 9]

YEAS:

The Honourable Senators

Roblin
Tremblay

YEAS:

Messrs.

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

NAYS:

The Honourable Senators

Asselin
Austin
Hays
Lapointe
Lucier
Petten
Rousseau
Wood

NAYS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Irwin
Lapierre
Tobin
Mackasey—15

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

Clause 8, as amended, carried.

On Clause 9 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 9 of the proposed Constitution Act, 1980 be amended by striking out lines 32 to 35 on page 4 and substituting the following:

“9. Everyone has the right not to be arbitrarily detained or imprisoned.”

Mr. Fraser moved,—That the proposed amendment to Clause 9 of the proposed Constitution Act, 1980 be amended by striking out the words “or imprisoned” and substituting therefor the following words:

“imprisoned or deported.”

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

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

YEAS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath
Nystrom
Robinson (Burnaby)—10

[Page 10]

NAYS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Rousseau
Wood

NAYS:

Messrs.

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

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

Clause 9, as amended, carried.

On Clause 10 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 10 of the proposed Constitution Act, 1980 be amended by striking out lines 38 and 39 on page 4 and lines 1 and 2 on page 5 and substituting the following:

“(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and”

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

Mr. Robinson (Burnaby) moved,—That Clause 10 be amended by striking out line 6 on page 5 and substituting the following:

“lawful; (d) if without sufficient means to pay for counsel and if the interests of justice so require, to be provided with counsel;”

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

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

YEAS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath
Robinson (Burnaby)—9

[Page 11]

NAYS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Rousseau
Wood

NAYS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Irwin
Lapierre
Tobin—13

Mr. Robinson (Burnaby) moved,—That Clause 10 be amended by adding after paragraph (c) the following:

“(d) to protection against self-crimination from the moment of arrest and the right to be informed of that right.”

After debate thereon, at 10:30 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

[Page 12]

EVIDENCE

(Recorded by Electronic Apparatus)
January 27, 1981

[Text]

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

Resuming consideration of the document entitled Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada, referred to the Committee from the Senate on November 3, 1980, and from the House of Commons on October 23, 1980; resuming the debate on Clause 7 of the Constitution At and resuming the debate on a motion of Mr. Beatty.

On Clause 7—Life, Liberty and security of person.

Mr. Epp: On a point of order.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp, on a point of order.

Mr. Epp: Thank you, Mr. Chairman.

Members will recall the events of last night and the reversal that took place, namely, that a Minister of the Crown, namely Mr. Kaplan at an earlier session, had given the word on behalf of the government and as a Minister of the Crown that the government was willing to accept the Conservative amendment on enjoyment of property rights, as amendment to the proposed resolution on the constitution.

All of us know the traditions of this place; that tradition is that the word of a Minister of the Crown, that that word is accepted, that there is an understanding that that word can be trusted. That tradition was broken yesterday.

The Prime Minister and the Minister of Justice has stated publicly that they will not accept any more amendments, that they will not accept any conservative amendments. We also know in conversations, not with our members but Liberal members and NDP members, members on this Committee that conversations have been such that they have, in their own private discussions. agreed that there will not be any Conservative amendments received or accepted on the basis that no matter what amendments that we might put forward and that might be accepted by the government would not change our opposition to the unilateral action of the government in the first place.

Those conversations, Mr. Chairman, we know have taken place, and that decision and that agreement between the NDP and the Liberals, in fact, is for their own decision and for their own participation. We will not participate, obviously, in either one.

The question then this matter raises, Mr. Chairman, is if the Prime Minister, if the Minister of Justice and certain members of the Liberal party sitting on this Committee, all are saying that no matter what amendments the Conservative party puts forward, that they will not accept them, not on the basis of merit but on the basis of who proposed them, then the question becomes very serious and it must be asked, then what is the purpose, what is the use of either proposing amendments and

[Page 13]

trying to improve the package or, for that matter, the participation of our party on the Committee.

Mr. Chairman, we have decided this morning that we will continue working on the Committee on the basis of good faith, by which we began our participation on the Committee. We feel, though, that there has been a serious breach of the word of a Minister and if further action is to be taken, that action will be taken at another place in another venue. But the coercion that we saw yesterday which resulted in the change of a word. that coercion we believe is despicable. So we will continue, Mr. Chairman, but with a very clear understanding that the events of yesterday, the agreement between the Liberal and the NDP party and the coercion that we saw, that we reject it and we abhor it and it is simply on the matter that we feel that this party a contribution to make and represents the views and minds of many Canadians that we will continue.

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

Honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

I am a bit amazed with Mr. Epp’s statements of fact in two respects. First of all, in no way am I aware of any conversations or agreements that say that this side will accept no amendments proposed by the Conservative party.

I really want to deny most emphatically that we have any arrangement amongst ourselves or with the NDP on that score. If the Prime Minister or Mr. Chrétien. as Minister of Justice has said such a thing, Mr. Epp, I am unaware of it and I would like you to let us know when and where it was said.

As far as we are concerned. we will deal with your proposed amendments on their merits as we see them. We have no prior arrangement or commitment.

Mr. Epp: Maybe I can answer your first question.

Senator Austin: I find that quite astonishing.

Mr. Epp: Maybe I could answer your first question.

Senator Austin: Yes, please.

Mr. Epp: Possibly you should recall your own conversation with Mr. Robinson.

Senator Austin: What conversation was that. Would you recall it for me, Mr. Epp?

Mr. Epp: I believe I have.

Senator Austin: Recall the details of it. So far this is just innuendo.

Mr. Epp: I just revealed the details to you.

Senator Austin: What were they, that I made an arrangement with Mr. Robinson that we would accept no further amendments from the Conservatives, is that what you are saying?

Mr. Epp: That is exactly what I am saying.

Senator Austin: That is totally untrue. It never happened. I never had such a conversation with Mr. Robinson, and I do not know how you could know about such a conversation, except in your imagination.

[Page 14]

The second point I wanted to make, if I may, is that I was very sorry to hear press stories that you might not return because I want it acknowledged on the record that the Conservative party here has made a good contribution to this discussion and it is a valued contribution. The fact that we do not agree, I hope is not taken as any denigration of the kind of contribution you have been making, and I am surprised again to have heard that point. But I wish Mr. Robinson would respond to the first point that you have made, because it is quite startling.

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

The honourable Minister of Justice.

The Hon. Jean Chrétien (Minister of Justice and Attorney General of Canada): I think that being involved, that I made such a statement, I never made such a statement at all; and in fact. if you recall some of the conversation that has been around this table and led me to accept some amendmets, and I just have in mind, for example, the amendment that we have accepted on the war criminals, the member for Rosedale was one of the first persons to speak about it and we have accepted that. I think that the statement of Mr. Epp’s is not founded. I never made such a statement to anybody and we will take every amendment and look at them, and we do not pay attention at all where they are coming from. We look at the amendment and see if we can accept it or not.

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

Mr. Robinson.

Mr. Robinson: Mr. Chairman, just with respect to the remarks made by my friend Mr. Epp, I wish to categorically deny any suggestion that there was a conversation of the nature to which Mr. Epp referred, and I would challenge him, if he has any evidence whatsoever to substantiate that statement, that he should put it forward, and if he has no evidence to substantiate it, that he should withdraw that kind of insinuation because there is not basis for it whatsoever in fact.

I understand that there has been a good deal of stress around this Committee but to think that it might have led to certain people hearing voices is rather disturbing.

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

Mr. Irwin.

Mr. Irwin: Mr. Chairman, I am surprised and discouraged by what Mr. Epp said this morning. I know of no such agreement or suggestion that we will not accept any amendments. Naturally, in most cases, we will be on the opposite side of the issue.

Many years ago Mr. Diefenbaker, who was in my riding, said the thing about democracy that makes it work is the clash of wills, and without this clash of wills, I really believe that there cannot be a true democracy, and I would hate to see this attitude prevail that there is no use you putting amendments forward because there will not be a debate or we have closed our minds because that certainly is not the case on my side.

[Page 15]

Just previous to this one, on the “every person” issue, I know that the overwhelming majority of our side came here to vote one way, but after hearing what you said, specifically you and Mr. McGrath, we changed our minds.

Now, that is just the issue before last. As far as I am concerned there is no such feeling on our side that we will not accept amendments, and that is not saying we are going to vote for your amendments but I hope it is dealt with on the merits.

Our debate may be coloured by political affiliation and strategy, but it is not a flat refusal to hear and to reason and to use logic for the betterment of the country, and I say that sincerely.

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

Mr. Nystrom.

Mr. Nystrom: I just want to make a bit of a plea this morning, Mr. Chairman, that we keep an optimistic frame of mind and that we hope that this Committee is an independent committee, that the government members are going to keep an open mind as well, that they will study each amendment according to its merit.

I want to say to you, Mr. Chairman, as I have said before, I think in this country we are in sad need of really radical parliamentary reform to make the committees really meaningful.

However, I do want to say to you, Mr. Chairman, that we have had amendments go both ways. We had an amendment that the Minister said he would accept last week in terms of Clause 2, I believe it was, and the word “everyone” which we wanted changed to “every person”. We had a commitment from the Acting Justice Minister saying it was acceptable to the government in a very similar way to what happened to the Conservative Party on Thursday of last week.

He said it was acceptable to the government, but after considerable debate in the Committee led by the Conservative Party the government members changed their minds and the indications we had were that they were going to vote with us to change “everyone” to “every person”, and that was an important amendment to many groups in this country, women’s groups in particular came here and argued that point of view. I see Miss Campbell is nodding her head in agreement.

We had many commitments privately from many of those members and signals publicly that they would support us.

[Page 16]

You will recall a little bit of a hassle at the Committee where we had Mr. Corbin saying one thing, Mr. Irwin saying another thing and a certain amount of confusion, and then we had a break for lunch and after the lunch hour we had a vote on that particular amendment of ours and every single Liberal member of the Committee voted against it.

Now, we had a very similar thing happen on Thursday. The Conservative Party are absolutely correct when they say that Mr. Kaplan gave his word that they would accept the property amendment. On Friday he said the same thing. Well, I made the same kind of argument as Mr. Robinson did. We made the same kinds of arguments against that amendment that the Conservatives made against ours a couple of days earlier, and the government had said they would accept the Conservative amendment. there were indications from the government members across the way that they would vote that way, but we put up an argument, we made a plea that we hold the vote until Monday, we reflect, we go back and consult the provinces, that we think about the process over the summer and then perhaps, perhaps when people have done some reflecting they will vote in a wise fashion against the amendment proposed by the Conservative Party.

Now, Mr. Chairman, that is exactly what appears is going to happen. And that is no different than what happened to our amendment last week when we had a commitment they had accepted and all of a sudden they voted against it.

Now, Mr. Chairman, just because they did a flip flop on us, just because they disappointed us in terms of the amendment we thought was very important to a large part of our constituency cut there in the country, we did not pick up our marbles and go home; we did not act like a little child whose candy has been snatched and run home crying to momma. We decided to stay here and keep on fighting, trying to build a constitution that will stand the test of time, that will be good for Canada and pull this country together, and we have every intention of participating in this Committee to fight for changes.

There are things in this resolution that I do not like personally. There are amendments that we are moving and will continue to move and changes we will fight for, and I make an appeal to all members to keep an open mind, to try to set aside some pettiness and some petty partisanship and to build a constitution in this country that will be good for Canada and bring the country together.

I just say that in closing, let us all continue participating. I say to the government: keep an open mind, listen to the arguments, listen to the people, and build a constitution that will pull this country together.

[Page 17]

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom.

[Text]

Hon. David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

I had not intended to intervene on a procedural matter because I know that Senator Roblin, indeed I myself have some comments to make with respect to the substance of the issue with respect to property rights, but after hearing the comments from members of the Liberal party and the New Democratic’ Party I feel a little awkward because it was an undertaking given to me the other day from the Minister and from Mr. Lapierre, and I feel like I have been run over by the car and then I get up to complain and somebody is offering regrets and somebody else is being concerned that somehow I should not have been down on the road but it was somebody else’s fault.

Let me say, Mr. Chairman . . .

Mr. Epp: It was your fault you were down on the road.

Mr. Crombie: Yes, fine, I have a right to be on the road and I think perhaps I should be the one who complains a little when the car knocks me down rather than having to apologize to the car. I hope Mr. Nystrom does understand that.

When I asked the Minister, it was through you, if you will recall, Mr. Chairman, I asked the Minister if he would accede to the request to include my amendment on behalf of the Conservative Party, I am sure every member has it here, and I asked the Minister would he be willing to do that and he said yes. Mr. Lapierre gave that undertaking, Mr. Irwin gave that undertaking and everyone nodded, Mr. Mackasey nodded.

I did not have any difficulty, Mr. Chairman, in believing the Minister, Mr. Kaplan, or Mr, Lapierre or Mr. Irwin, or indeed any one of those people across the way because I had done some research and noted that the Liberal party in 1969 had included the right to enjoyment of property, not to be deprived thereof except according to law, that was in the proposed federal charter of 1969.

Then in Bill C-60, introduced in 1978 and concluded in 1979, they also included property rights, the right to use and the enjoyment thereof and not to be deprived thereof except in accordance with the law. That was the Liberal party position in 1979. I had no difficulty because that was the position of the Canadian Bar Association in their submission in 1978.

So that there was good background to believe the Liberal party that they were serious in all of those times, that they supported the protection of the right to use and enjoy property except when it was deprived as a consequence of due process of law.

Finally, it was understandable to me that they would take that position because it has been one of the oldest rights that we have had, it has been the one right in all the charters of rights and bills of rights and petitions of rights in our tradition, it has been the one right which we depended upon to avoid the arbitrary acts of government. There are some who do not like the right because it gets in the road of government plans, and that is true; it gets in the road of government plans, that is why you have it, that is why generations of Canadians have insisted

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upon it, and that is why generations of Canadians are going to continue to insist upon it.

So, Mr. Chairman, we are not dealing with something light, when all of a sudden over the weekend Mr. Chrétien, speaking on behalf of the government, disavows what Mr. Kaplan said two days before on behalf of the government, on the protection of the right to enjoyment and use of property. an ancient right, and these guys just fall for it like so many logs and disavow the Liberal position of generations. That is why there is regret on this side, and it is not just a » question of procedure, the Minister, one minister or ministers of the Crown speaking out of both sides of their mouths. What do I do now? What does any member of this Committee do, indeed any member of the public, when they get the word of the Minister of the Crown of this government?

Well, I read in the paper, I hope it is correct, that Mr. Chrétien said: over the weekend I talked with the Prime Minister and we decided to change the position. I can tell you every time, Mr. Chairman, from here on in that I get any undertaking from the Liberal caucus or a Liberal minister, I will wait, I will wait to see whether Mr. Chrétien or somebody else is meeting with Mr. Trudeau and then I will know whether or not that commitment will be kept.

So you have to revert to perhaps a more ancient wisdom, Mr. Chairman: fool me once, shame on you; fool me twice, shame on me. And you are not going to fool me the second time.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you, hon. David Crombie.

I remind the hon. members that we are still on a point of order as was raised by hon. Jake Epp and seeing no more speakers on that very point I would like to invite the hon. Senator Duff Roblin, unless—I am sorry, hon. Senator Roblin; hon. James McGrath.

Mr. McGrath: I apologise for interrupting but it is a new point of order and it has to do with our procedure.

I would make a request that the steering committee meet as quickly as possible in order to deal with the question of the allocation of time on clause-by-clause, otherwise our two friends down here now involved in a reactivated coalition can get a disproportionate amount of time, can in fact hold up our amendments when it is convenient for them and deal with their amendments because the government, of course, is more receptive.

I think the steering committee has to deal with this. My own view is that a member should be allowed to intervene only once on an amendment because we are dealing here with strict allocation of time. we are operating under closure, and my view is we should not have another form of closure, and that is the kind that was imposed on the Committee last Friday by the New Democratic Party.

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The Joint Chairman (Mr. Joyal): Thank you very much, the hon. James McGrath.

On behalf of the hon. Senator Hays, I see that the hon. Senator Austin is indicating to the Chair that he is willing to have such a’ meeting later on today.

I see no sign on the part of Mr. Nystrom; I understand if members of the different parties agreed to meet later on today that there will be such a meeting.

I would certainly accept your request. the hon. James McGrath.

That being so, I would like now to invite the hon. Senator Roblin on the substance of the amendment as moved by the hon. Perrin Beatty.

Senator Roblin: Thank you, Mr. Chairman.

When I listened to the undertaking given by the government on Thursday that they would support our position on property rights. it seemed to me then that that was one of the rare occasions when common sense had intruded into our deliberations.

It is a little disillusioning to find that, in reality, expedience has won the field.

So I suppose you might say it is an example of hope triumphing over experience, if I should think that my efforts to promote the merits of enshrining property in our constitution will meet with the approval of the majority on this Committee today.

In spite of the fact that the government has warned us that it is a lost cause, I feel that it is our responsibility to advance some argument as to why it should be a winning cause.

I would like to refer to two matters: I would like to discuss the rights of property; I want to discuss the rights of the provinces; because in this discussion they are very closely intertwined indeed.

I think the Canadian people understand what one means by “the rights of property”. I do not think that anyone can argue for one minute that. philosophically speaking, the people of this country are opposed to the idea that property has rights and that rights of this nature could well be enshrined in a constitution of this sort.

They understand very well, if not the historical details, at least in their concept of the growth of our democratic system, that the rights of property have been associated from the beginning with the development of the growth of free institutions in this and other lands. That is a point which should not be overlooked.

But they are also well aware that the rights of property are not absolute. We know that none of the rights, as I understand it, that we have enshrined in this bill before us are absolute.

They are all conditional for very important reasons.

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They know that there are times when the rights of property insofar as individuals are concerned will take a place behind the rights of the community. That is not a point that is in issue in this discussion, I would submit to you, Mr. Chairman.

The rights of property, as David Crombie has said, has been historic. I am looking at a set of books called The Constitutions of Nations, and whether you go to Magna Carta 1215 or the Bill of Rights in 1627, or in the American Constitution of 1783, I guess it was, you will find that all those constitutions and constitutional measures contained within them recognition of the rights of property.

If you were to examine the constitutions of the nations of the world; if you look at constitutions of nations such as Sweden, Norway, Denmark, Finland, the German Federal Republic or 20 other states in reasonably good democratic standing, that I could mention in this discussion, you will find that the rights of property are included as a fundamental rights of their citizens.

If you care to take a look at the Universal Declaration of Human Rights, Article 17, you will find that the same circumstances are present.

Insofar as our position in Canada is concerned, we have bills of rights of our own, and we know that the right to property is enshrined in the Diefenbaker Bill of Rights, and that a number of the provinces with acts to protect certain rights include this right; the Saskatchewan Bill of Rights Act includes property—and I could read it; paragraph 9, states that every person and every class of person shall enjoy the right to acquire by purchase, to own in fee simple or otherwise, to lease, rent and to occupy any land, messuages, tenements, or here ditaments, corporeal or incorporeal of every nature and description and of every estate and interest therein, whether legal or equitable without discrimination because of race, creed, colour, religion, sex, nationality, ancestry or place of origin of such person or class of persons.

Well, you cannot do very much better than that when you want to enshrine the rights of property in a constitutional document—and I would submit that this document is.

It is even more interesting when you know that, according to the Statute of Interpretations in Saskatchewan the word “person” includes corporations.

So the idea of including property rights in bills of this kind is nothing new, either in the history of the world or our own experience. I think there is a similar clause or one like it in the Quebec Bill of Rights as well.

So I submit to you that, on the basis of our understanding of the world live in, of the development of the democratic institutions which we enjoy, of the actual experience in our own nation, in the measures put before us by the federal government on previous occasions, such as Bill C-60 and measures of that kind, the question of property rights occupied a place in our constitutional structure.

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I think our people will insist that that shall continue to be the case, and that while we recognize that these rights are not absolute, nevertheless, they are well worth stating, even though we know that in certain instances the rights of the community will take precedence over the rights of individuals.

So I think the case for property rights in our constitution is unanswerable.

The point that has been raised, however, has nothing whatever to do with that, because they say: “Well, we believe in property, all right; but we do not think this is a way to do it. Why do we object to it? We object to it because, for example, the Province of Prince Edward Island has told us that they do not wish to have this body legislating property rights for their province”.

Mr. Chairman, they could not be more correct! When Premier Angus MacLean sent his telegram asking us not to legislate on property rights for his province, he could not be more correct. I agree with him fundamentally and wholeheartedly; because this particular example has exposed, in my opinion, the constitutional illegitimacy of what the government is trying to do.

They come to us and say on this one issue of property rights in Prince Edward Island; “We want to respect the province’s point of view”. But on all—those other massive measures which are included in this bill affecting the province of Prince Edward Island and other provinces, “Why that of course, we will put into discard, and we shall pay not attention to their protests on that particular view”.

The Minister of Justice would have done better, it would seem to me, when referring to the situation of the Province of Prince Edward Island if he had referred us to the brief that the Premier of Prince Edward Island gave us when he was here and then he would have placed the matter in its proper perspective; because Angus MacLean made it quite clear that constitutions in Canada should be written by the representatives of all 11 legislatures and that he felt so badly about the way this government was proceeding, not just in land matters, but in everything, that he is taking the Government of Canada to the court.

I am bold to prophesy, and I may live to regret this; prophecy is a dangerous avocation, but I think the courts of this country will have something to say about this issue, which may, perhaps, be more palatable to the Premier of Nova Scotia than they will be to the Prime Minister of Canada.

But Angus MacLean made it perfectly plain that the basic principle of the federal state was at challenge here because of the unilateral action that is implied in this bill.

We Progressive Conservatives reject it, and if we say that there should be property rights, as we do, enshrined in our constitution, it is not that we are going to impose that clause unilaterally on the Province of Prince Edward Island or any other province of this country. If we have our way and if this Committee listens to the good judgment of the Canadian

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people as expressed so many times in recent days, they will separate this question of rights from the issue of patriation, and while they will proceed with patriation, the issue of rights will go back to the provinces where it belongs, because who around this table can challenge the constitution of Canada when it says that property and civil rights belong to the provinces. Of course they do: that has been the accepted position for 113 years.

I say that while it is perfectly in order for us to produce a Bill of Rights that suits us, that is appropriate in the federal sphere in which we are common to the legislature, it by no means follows that that same thing is to be imposed on the provinces without their consent, and it seems to me that we have a duty to make this Bill of Rights the best one we can from our point of view, but we do not proceed beyond that point to say, “The 10 provinces of Canada will like it or lump it”, We are going to say to them. “You will have your place in coming to an amicable arrangement on this point”.

Premier Angus MacLean was the man that told us that this could be done, because in his brief that was before us at the time, he made it perfectly clear, if I can use his words, negotiate further because we had reached a plateau from which a sound agreement was attainable.

it seems to me and I say to this Committee, Mr. Chairman, that it is ironic that the government should say, “Vote the Conservative’s amendment on property down because the Province of Prince Edward Island does not like it”, when all the other things that the Province of Prince Edward island and nine other provinces—l had better be careful—a majority of the provinces do not like—are going to be foisted on them willy nilly if we follow the policies of this administration, supported, i might say, by the NDP and their going to insist that the Parliament of Canada adopt them.

I have no philosophical problem whatsoever in recommending the entrenchment of property rights to this Committee, and no philosophical problem whatsoever in going further to say this is a matter which you will have to continue to negotiate with the provinces until you get a solution that is satisfactory to all parties.

It seems to me that the issue is very clear. The government has changed its mind on the subject. I do not like it and I think it is a most lamentable breach of parliamentary ethics. I share the opinion of my colleagues around this table; it is going to be hard to know who to believe from now on, but they have done it.

The Minister said this morning he is still open to a reasonable argument. I hope I have given him some reason to reconsider the position which has been taken, that we can and should put property in our constitution as one of the rights of the citizens of Canada and at the same time recognize that we have no authority to impose our views on this matter on the provinces of Canada and that this is something that must be decided by continued negotiations.

Once you allow impatience to take the place of patience, then you are on the road to difficulty and problems when you are dealing with the constitution of this country. I had the

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privilege of sitting around those council tables for some time, and I know that patience works and I know that a calm and careful elucidation of the problem over time solves the situations that perplex us and beset us at first hearing.

I can recall only too well some of the things that Mr. Bryce Mackasey ought to recall well in connection with great social developments in this country, which in the beginning were a very difficult solution but which over the years, and it was several years, allowed themselves to be compromised to the extent that we got a solution that everyone could live with.

We can do the same thing with our constitution. My plea to this Committee is to be careful; my plea to this Committee is to be patient; my plea to this Committee is to use common sense. Do not depart from the principles of federalism. Do what we must do as members of the federal legislature, but let us leave to the provincial legislatures the responsibilities that belong to them.

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

I do not see any other speakers on my list. I would like then to invite the honourable Perrin Beatty to conclude on the proposed motion.

Mr. Beatty: Mr. Chairman. I want to return briefly to the issue that is before the Committee because I think that in the discussions which have taken place because of the betrayal by the government of the commitment made to members of the Committee, that perhaps the focus has been shifted away from the central issues relating to what the amendment stands for.

I want to say at the outset, Mr. Chairman, that I as mover of this amendment, as someone who believes very strongly that the right to the enjoyment of property should be included in the constitution and that it should not be taken away without fair practices being followed first, that I feel betrayed by the government’s action. They have betrayed their members; they have betrayed the Canadian people because they gave a firm undertaking, It was one, Mr. Chairman, which was shown on nationwide TV, as the proceedings of this Committee are carried from coast to coast. It is one which was widely reported in the press and yet now we find that the Minster of Justice, because of the position taken by the NDP, is prepared to reverse that position.

Mr. Chairman, there has been a fair amount of discussion as to whether or not indeed a mistake was made by Mr. Kaplan. whether or not he was not aware of the discussions which had taken place last summer, and whether it was necessary for Mr. Chrétien to come before the Committee last night to remind the Liberal members of those discussions. Mr. Chairman, the very same officials who flank Mr. Chrétien, the Minister of Justice, today, flanked the Acting Minister of Justice last week and gave him advice as to what course should be followed, and I think that the Ministers statement that his colleague, the Solicitor General, acting on behalf of the Minister of Justice, that he was not aware of these commitments that were being made is an indictment by the Minister of Justice as well of the officials who surround him. I think it is most unfortunate that

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that would have taken place because what he was in essence saying was that either those officials who have participated since the outset of these hearings were totally unaware of commitments that were made by the government and of what Mr. Chretien indicated was the most serious objection raised by the provinces over the course of the summer discussions, or else they did not inform Mr. Kaplan when he appeared here as Acting Minister of Justice of that fact.

Mr. Chairman, I do not believe that the officials were deficient. I do not believe they were negligent; I do not believe they were asleep at the switch in terms of not being aware of concerns expressed by the provinces before. What I do see happening though, Mr. Chairman, was that an ultimatum was issued to the Liberal members, the Liberal government by the NDP over the course of the weekend where they indicated that they would withdraw their support, a support which has given the only western support of any substance for the government’s constitutional package, that support would be withdrawn if the government kept its commitment to property rights. This is why then, Mr. Chairman, the Canadian Press yesterday morning ran a story which quoted the Parliamentary Secretary to the Minister of Justice as indicating that he was deeply concerned about the possibility that the NDP might withdraw their support if the property rights amendment was supported that the government had committed itself to doing. It quoted the Parliamentary Secretary in this way:

There is a possibility the government will vote against the property rights amendment because NDP support for the package is very important to the Liberals, said Irwin, MP for the Northern Ontario riding of Sault Ste. Marie.

Mr. Chairman, when Canadians ask themselves why the government broke its word, I think that it need look at the record, and it need look at what members of the government have said, and I think that they will find that there was one reason for that and that is that the NDP had increased the pressure and they had indicated that they would withdraw their support.

Mr. Chairman, on this issue it appears as if the NDP will win this victory, but it will be a Pyrrhic victory, because what they have done is to indebt themselves to the Liberal party. They have said once again that as a condition of their continuing support of the government’s constitutional initiatives, which we consider to be improper and which 64 per cent of the Canadian people believe to be improper, that it was necessary that the government take a particular action. The government has taken that action. It has swallowed itself. It has broken a commitment, Mr. Chairman, a solemn commitment that it made in order to maintain that support of the NDP.

I warn the members of the NDP as they revel in their success in this particular amendment that the price by them has yet to be paid as this resolution goes back into the House of Commons, because it will be expected that because the government has met the conditions set by the NDP on yet another occasion, it will be expected that the NDP will have to keep their side of the deal, namely, that their continuing

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support of the government’s package will have to be maintained.

Mr. Chairman, what will this mean as the members of the NDP go back to their constituencies? I want to bring the focus again back to the amendment itself and remind members of the Committee and remind the Canadian people that what the Progressive Conservative members of Parliament are asking for is that within the concept of the Charter of Rights, that the constitution should recognize that Canadians should have the right to enjoy property and that that right should not be taken away from them, except in accordance with the principles of natural justice.

This is what is opposed by the members of the NDP and this is what the members of the government have now said they are prepared to oppose as well.

The NDP has raised concerns about the question of what constitutes natural justice. is this something which could infringe upon the abilities of legislatures to legislate? I want, Mr. Chairman, to simply read into the record a very simple definition that was given by Robert F. Reid and Hillel David in the book Administrative Law and Practice, second edition and under Chapter 6 entitled Natural Justice it says this:

Natural justice is a simple concept that may be defined completely in simple terms: natural justice is fair play, nothing more.

What we are asking for, Mr. Chairman, is that we are saying that when legislatures or when Parliament seek to deprive people of their property, that they should abide by the principles of fair play. That is what the members of NDP, that is what the members of the Liberal party will be voting against.

Let me also quote to the Committee, Mr. Chairman, another brief quotation, which is quoted in a book by S. A. deSmith, a professor at the University of London, Judicial Review of Administrative Practice, and under Chapter 4, the heading Natural Justice: The Right to a Hearing, he quotes a decision of the courts as saying this:

No proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the case against him, unless indeed the Legislature has expressly or impliedly given an authority to act without that necessary preliminary.

That is what they are talking about; that is what we are talking about when we refer to natural justice. We are saying that people have a right to a fair hearing before their property is taken away from them.

Mr. Chairman, the members of the NDP have asked, is there a real concern? They have said that a family business, a family store is not in jeopardy of government simply taking it away. They have said that the family home is not in jeopardy or simply being taken away and that it need not have this protection in the Charter of Rights because there is not a great threat there.

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Mr. Chairman, what member around the table of this Committee has not had constituents come to him with cases in his constituency where the right to hold property has been taken away unjustly? How many of us who live near the Toronto area do not have constituents who have raised concern about the expropriation of their property as a result of the Pickering decision? How many of us from the the Montreal area have not heard of complaints from constituents about the expropriation that took place in the case of Mirabel? How many other Members of Parliament have not heard about other complaints from their constituents who have found that their homes, or their farms, or their businesses have been taken away from them, often without a just hearing, without just procedures being followed, and are they now to go back to these constituents and to say that they believe there is no need to protect those rights in the constitution, that those rights are adequately protected today?

Mr. Chairman, if the Committee votes, as it appears that it will. to deny Canadians the right to enjoy property and the right not to have their property taken away from them without a proper hearing, then they will be doing a serious disservice to all Canadians. They will be eliminating one substantive provision of the Diefenbaker Bill of Rights, namely, the right to enjoy property and not to have it removed from them except by due process of law. That will be dropped.

The other substantive provisions of the Diefenbaker Bill of Rights will be included, but a conscious decision is being made here. Mr. Chairman, to exclude property rights, to no longer mention property rights in the Charter of Rights.

Mr. Chairman, the members of the NDP and members on the government side have mentioned from time to time the Universal Declaration of Human Rights to which Canada is a signatory. and to which we have an obligation. I want to put it on the record that Article 17, the right to enjoy property, is included as one of the fundamental rights that people must have. it reads as follows:

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitarily deprived of his property.

Mr. Chairman, that is the Universal Declaration of Human Rights. The government is a signatory to that. This principle to which the government of Canada is committed is precisely the principle the Progressive Conservative members of Parliament are asking to be included in our Charter of Rights, and yet the combination of Liberal members and NDP members will be voting to deny that protection for Canadians, which the Canadian government is obligated to give under the International Charter of Human Rights.

Mr. Chairman, this is an essential issue. It is one that millions of Canadians are watching. Any Canadian who has ever wanted to own a home of his own, any Canadian family who believes that the family homes is essential, will recognize the fact that their rights are in jeopardy here.

As my colleague Mr. Crombie says, those Canadians who participate in pension funds will be concerned because their rights are being sacrificed here. Canadians who put aside for

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their retirement by buying stock in Canadian corporations, and how many of them are in each of our constituencies, will find that their rights are left unprotected. Owners of family farms will find tht the family farm is left unprotected. Owners of family businesses will find that the family business is left unprotected. Owners of copyright, owners of patent rights will find all of these rights are areas where the constitution is to remain mum.

Mr. Chairman, I want to deal just very briefly again with this question of whether this is an area in which the Progressive Conservative members are proposing that we should invade an area of provincial rights, and would this prevent provinces from legislating in areas which come under their jurisdiction.

As Senator Roblin has pointed out very eloquently, the position from the outset of the Progressive Conservative Party has ‘been that in areas which are currently falling under the jurisdiction of provincial governments, the federal government should not be imposing new obligations or new restrictions upon the ability of the legislatures to pass laws and that the provisions of the Charter of Rights would come into effect only after the legislatures themselves had approved the fact that they should come into effect. So we would not be imposing these rights upon provinces. We are saying what is wrong from the outset with the government’s activities is that they have been seeking to override the rights of provincial governments and that it is essential that we go back to the provinces and that we try to work out an agreement which all of us can feel is in the best interest of Canadians.

But we do have an obligation here as well, to set national standards and to set goals which we would hope would be met by all jurisdictions in Canada, and then we will go back to the provinces and say, “We hope that you will subscribe to the principles which we put into the constitution here. but they will not apply in your jurisdictions until such time as you have indicated that you do support it”.

I listened to Mr. Robinson last Friday as he very strongly spoke against the proposal that we were making on the grounds that it was an attack on provincial rights. Mr. Chairman, it was Mr. Robinson who spoke in favour of imposing the right to freedom of information on provinces and on municipalities on the basis that that was an essential right which Canadians should be entitled to at all levels of government. When it suited the NDP’s convenience to argue that the federal government should impose rights, that they should be included in the charter when they fell under areas of provincial competence, then they would act; but when it did not suit their convenience, when they felt that there was a particular right which they did not want included, then they brought out the argument that somehow this infringed upon provincial rights.

Mr. Chairman, I think that even the members of the NDP have a responsibility to be consistent. The Progressive Conservative members have been consistent. We have said that yes, we can set standards in this Charter. Those standards must not apply in areas falling under provincial jurisdiction

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until the provinces have had themselves a chance to pass judgment as to whether or not they would be allowed to do so.

Mr. Chairman, I want to put on the record again the response that was made by Mr. Kaplan, the Acting Minister of Justice, in response to a question from Mr. Mackasey, who last Friday asked Mr, Kaplan about the argument being made by the members of the NDP that the rights of the provinces would in some way be infringed upon by the action proposed by the Progressive Conservative members.

Le me read to you in its entirety Mr. Kaplan’s response:

MR. KAPLAN: Mr. Chairman, I would like to be brief in my answer but I would like to indicate that from the very beginning the Liberals have favoured the notion and concept of the protection of economic rights and rights of property, and that our reasons for withholding that provision from this bill was for the reasons that some members indicated, there were strong provincial objections to the inclusion of that type of protection.

Now the Conservative members have put the provision forward and on the basis of their being prepared to see that contentious issue addressed by this Committee and addressed by Parliament at this time, the Liberals are prepared, knowing the Conservatives are prepared to support this, since we do believe that economic rights and the rights of property should be recognized and protected, we are also prepared to see that provision move forward.

That is a firm commitment on behalf of Mr. Kaplan on behalf of the government. He goes on to explain why he rejects the argument that was made by the NDP. He said this:

Now, the arguments that Mr. Robinson and Mr. Nystrom advanced are largely irrelevant to this particular provision because this provision deals with process and not with the question of whether foreign interests, for example, should be allowed to acquire assets or own property on the same basis as Canadians. This has nothing whatsoever to do with that.

All this deals with is the question of due process and provides that “anyone”, and I can assist Mr. Nystrom again by confirming that “anyone” means anyone as he suspected that it did, so that it is not something with respect to which anyone would need much time to reflect on. “Anyone” means anyone, foreign, domestic, incorporated or unincorporated, has the right not to be deprived of the enjoyment of their property except according to the principles of fundamental justice or of natural justice, whichever the Committee determines.

The narrow answer to your question

This is the question by Mr. Mackasey:

is yes, we could restrict the right to be treated fairly in the process to Canadian citizens. We could indicate by implication, as I think Mr. Robinson wanted to do, that foreigners should be subject to unfair rules, if that is what Parliament decides, that they should be denied due pro-

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cess on the enjoyment of property in our country. We do not agree with that. We feel the due process rule should apply to everyone, and I mean everyone who is allowed by whatever laws are relevant to own and enjoy property in Canada.

That was the statement that was made by the Acting Minister of Justice just last Friday as he explained the opinion of the Department of Justice and of himself that the amendment which we were putting forward would not infringe upon the rights of the provinces to legislate, that all that it would do would be to ensure that anyone who had property taken away from him would have had the right to due process, to a fair hearing. Mr. Chairman, that is what today the members of the New Democratic party and the Liberal party will be voting against.

Mr. Chairman, let us make it abundantly clear as well that in our opinion, and I believe in the opinion of Mr. Kaplan on the advice of the Department of Justice, that there is nothing in this amendment, if adopted by the provinces, which would limit the rights of the provinces, for example, to expropriate property in the provincial interest, or to prevent out of province ownership of property. Nothing in this would prevent that, but what it would ensure is that the restrictions be reasonably justifiable, first of all, and secondly it would ensure that when property was taken away from an individual he would have the right to a fair hearing.

Mr. Chairman, why do the members of the Liberal party, why do the members of the New Democratic party feel that Canadians and all individuals should not be entitled to that right? The provinces would be able to exercise their jurisdiction unfettered, as they can now, with the sole proviso that when they took away an individual’s property they would be required to give him a fair hearing first, and surely, Mr. Chairman, that is not too much to ask to be included in the constitution of Canada. That is all that we are asking on this side of the Committee and we believe that it is something that all members of the House should be supporting and it is an issue which we will be taking back into the House of Commons and across this country.

Mr. Chairman, when the members of the New Democratic party, as this issue goes back in the House, when they talk about why it is to their constituents in Western Canada that feel strongly that this package should be defeated, that it should not go forward in the way in which the government is proposing, that there should not be this sort of unilateral action, when they are forced to defend their support of the government what will they be able to claim as their trophy, what they got in exchange for their support and for the rights of their constituents?

They will claim two things, Mr. Chairman: they will be able to claim that Mr. Broadbent in a letter to Mr. Trudeau was able to get the assurance that the provinces would have something slightly less than the rights over natural resources than they have today, they can claim that as the first victory.

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The second victory they can claim, Mr. Chairman, is that they were able to deny Canadians this right to due process and the holding of property, if property is to be taken away from them, that the owners of family farms, the owners of family businesses, the families who want to have a home of their own would not have this right included in the constitution.

Mr. Chairman, I think that their constituents, and I think the people from one coast to another in Canada, will feel that the price paid was far too dear. The price paid was far too dear, that the interests of Canadians were sacrificed, that the unity of Canada was sacrificed because of these decisions.

Mr. Chairman, we are prepared to see the vote take place. I once more implore the members of the government to recognize that they made a commitment, a firm commitment to which they are bound, and that integrity and honour demand that they keep that commitment. These is no out for it, there is no easy answer by reverting to Clause 2 that they can undo the commitment that was made. They are committed, and if they are honourable, Mr. Chairman, they will keep that commitment in this vote.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Perrin Beatty.

The Chair would like to then call the vote.

Mr. McGrath: We would like a recorded vote, Mr. Chairman. If you could just delay it for a few moments, there are a few colleagues out of the room, at least one.

The Joint Chairman (Mr. Joyal): Yes, the Chair has been advised, honourable James McGrath, that some of the honourable members who were attending this morning’s session are not around the table, they would be advised to take their seats so that the Chair may invite the Clerk of the Senate to call the vote in the usual way.

Amendment negative: Yeas 8; Nays 15.

The Joint Chairman (Mr. Joyal): I would like then to move on and invite the honourable members to take the next amendment, the one that is numbered N-10, Clause 7, page 4, and it is an amendment moved by the New Democratic Party and I would like to invite Mr. Robinson to move the amendment in the usual way.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I move that the amendment to Clause 7 be amended by adding thereto immediately after the word “justice” the following:

including the principles of due process of law.

[Translation]

Must I read it in French, also?

The Joitn Chairman (Mr. Joyal): If you please, Mr. Robinson, according to the usual procedure.

Mr. Robinson: Mr. Chairman, I move that

[Text]

Que l’article 7 soit modifié par adjonction, après le mot «naturelle», de ce qui suit:

«y compris le principe de la légalité.»

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The Joint Chairman (Mr. Joyal): Mr. Robinson, before I invite you to go on, on the presentation of your motion, I would invite you to make corrections because you have read that . . . [Translation] it is moved that Clause 7 be amended by adding the word “natural”.

Since we have not accepted the preceding amendment, therefore…

Mr. Nystrom: After the word “justice.”

The Joint Chairman (Mr. Joyal): No, the exact word is still the term “fundamental” and not “natural.”

So in your amendment, you must substitute the word “fundamental” to the word “Natural.” [Text] I invite you to make the correction.

[Translation]

You may go on.

[Text]

Mr. Robinson: Thank you, Mr. Chairman.

The purpose of this proposed amendment is to take into consideration the recommendations of a number of witnesses who appeared before this Committee, including in particular the recommendations of the Canadian Bar Association.

It was the Bar Association who pointed out that the concept of fundamental justice, as is contained in Clause 7, is one which is virtually unknown in Canadian jurisprudence and that the Canadian Bill of Rights in Section 1(a) contains the concept of due process of law.

Now, we recognize that the principles of fundamental justice are subject to some interpretation and expansion as was pointed out by the Minister of Justice the week before last when he was explaining what was meant by fundamental justice. We therefore do not wish to suggest that the concept of fundamental justice should be swept aside and replaced with due process, but we would merely suggest that the existing jurisprudence on the question of due process should be incorporated in the concept of fundamental justice.

Now, this is not a new recommendation, Mr. Chairman. I would point to Bill C-60, for example, which included the concept of due process of law rather than a reference to fundamental justice. This was affirmed by the MacGuigan-Lamontagne Committee in their hearings, in their report on Bill C-60.

In the proposals of the federal government before the First Ministers’ conference of February, 1979, once again the concept of due process of law was that which was proposed by the federal government, and again in both July of 1980 and in August of 1980 the federal government proposed not fundamental justice, not that vague concept which is as yet untried in Canadian jurisprudence, but rather the concept of due process of law which, as I say, is certainly contained in the existing Bill of Rights.

So, Mr. Chairman, that is the purpose of the proposed amendment, to include within the scope of Clause 7 the existing jurisprudence on due process of law. to permit some expansion by the courts if necessary of this concept, recognizing that the concept of fundamental justice may itself lead to some new jurisprudence on the questions of life, liberty and security of the person. That is the purpose of the amendment, Mr. Chairman.

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I do have a couple of questions for the Minister, if I may just ask those questions with reference to the existing provisions in Clause 7.

Mr. Chairman, if I may, then, ask a couple of questions of the Minister with respect to the existing wording of Clause 7, I would first of all again like to obtain some clarification from the Minister as to whether or not the words “principles of fundamental justice” and the concept of fundamental justice contained in Clause 7 is intended to incorporate the concept of due process of law from Section I of the Canadian Bill of Rights?

Mr. Chrétien: Yes, fundamentally, but in terms of procedure there are some nuances and perhaps I can ask Mr. Strayer to . . .

Mr. Robinson: Certainly.

Mr. B. L. Strayer, Q.C. (Assistant Deputy Minister, Public Law, Department of Justice): Mr. Chairman, it was our belief that the words “fundamental justice” would cover the same thing as what is called procedural due process, that is the meaning of due process in relation to requiring fair procedure. However, it in our view does not cover the concept of what is called substantive due process, which would impose substantive requirements as to the policy of the law in question.

This has been most clearly demonstrated in the United States in the area of property, but also in other areas such as the right to life. The term due process has been given the broader concept of meaning both the procedure and substance. Natural justice or fundamental justice in our view does not go beyond the procedural requirements of fairness.

Mr. Robinson: Mr. Chairman, may I ask, following up with a couple of questions, may I ask, then. what the basis for Mr. Strayer’s statement that the concept of fundamental justice has no substantive component? Where is the jurisprudence on that particular section, what evidence does he have to support his interpretation that this might not have a substantive component?

Mr. Strayer: We have not been able to find any evidence of that term ever having been given a substantive content.

Mr. Robinson: Well, can you point to any interpretation of that term whatsoever within the context of the Canadian legal system that might assist us?

Mr. Strayer: Which term do you want?

Mr. Robinson: Fundamental justice.

Mr. Fred Jordan (Senior Counsel, Public Law, Department of Justice): Yes, Mr. Chairman.

This expression appears in Section 2(e) of the Canadian Bill of Rights now in terms of the right to a fair hearing in termination of ones rights and obligations.

The Chief Justice in the Duke case in 1972 in the Supreme Court spoke about the meaning of Section 2(e) and said a fair hearing in accordance with the principles of fundamental justice, without attempting to formulate any final definition of those words, I would take it to mean generally the tribunal which adjudicates upon his rights must act fairly, in good

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faith, without bias and in a judicial temper and must be given an opportunity adequate to state his case, and I think that is the classic definition of the rules of natural justice or the principles of fundamental justice.

Mr. Robinson: Do you make any distinction, then, between the principles of fundamental justice and the rules of natural justice?

Mr. Jordan: Not in light of the interpretation which the Chief Justice gave it in this case here.

There is a possibility that in a particular context one could see it as having a somewhat expanded meaning but there is no jurisprudence which would indicate that it is clearly broader than the principles of fundamental justice that have been articulated in all of the various common law decisions. I believe you quoted from Professor Wade or perhaps it was Mr. Beatty earlier.

Mr. Robinson: Well, Mr. Chairman, I am sorry to belabour this point but it is an important point because this is an important clause and it is a new principle of law.

Mr. Jordan, you have pointed out that the concept of fundamental justice has been interpreted with respect to the requirement of a fair hearing. With respect, that is not what we are talking about in Clause 7, we are going well beyond that and we are applying the principles of fundamental justice, whatever they may be, to the right to life, liberty and security of the person.

Now, can either you or Mr. Strayer, or perhaps the Minister with his legal knowledge, point to any interpretation of these words in that sweeping context?

Mr. Strayer: Obviously not in this specific context because these words have not appeared in a constitution or in any type of statute before, but I am bound to add, Mr. Chairman, that there is a good deal of jurisprudence on the term “due process”, both in Canada and the United States, and some of the jurisprudence in the United States gave rise to the problem that we were trying to avoid with the term, “fundamental justice”.

Mr. Robinson: Perhaps. then, now that you have admitted that this concept of fundamental justice is not found in any statute or any constitution anywhere else in the world to the best of your knowledge in connection with these principles, what is the particular concern with respect to the application of the principles of due process of law which continue to apply, certainly within the federal context by virtue of the Bill of Rights, what specifically is your concern with respect to their application? How could these be applied in a substantive sense to any of the provision of Clause 7?

Mr. Strayer: Well, there are various possibilities. The term “security of the person”, for example, could be interpreted in a very broad sense so the term “security” could cover matters of a, say, contractual or property nature. More particularly the question of right to life, gives rise to, if it is interpreted in a substantive way, gives rise to questions about matters such as capital punishment, abortion and so forth, and if one used the term “due process”, and by that language imported some of

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the American jurisprudence under due process, then the result would be what I believe the Committee indicated last week they wanted to avoid, and that was prejudging the law or the question on both those issues. In other words, it might somehow have the effect of limiting the options of Parliament in the future on those subjects.

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

I see that we are now having a discussion between the mover. and of course, a representative of the Department of Justice in such a way that it is no longer an expression of views of honourable members on the merits of the amendment. but more discussion between two eminent lawyers on the wording and significance of natural justice as opposed to, or as a complement to fundamental justice.

In that respect, the Chair is certainly agreeable to receiving a question, but not to allow such a debate, because we would be taking, I should say, a sideline which might be open in any amendment: in all fairness, those general questions or discussions of principles should have taken place when we were on the general discussion of Clause 1.

I think Mr. Robinson will have an opportunity to conclude his remarks and will have, probably, an opportunity to state his principles.

The Honourable Senator Tremblay.

[Translation]

Senator Tremblay: Before I proceed, Mr. Chairman. I would like some clarification from the mover of this amendment.

Earlier, you drew his attention to the fact that in the French version of their amendment, you should not use the term “naturelle “, but rather “fondamentale”.

You presupposed that during the preceding votes, our proposal to replace the term “fondamentale” by the term “naturelle”, had been defeated, but my point of clarification bears precisely on his own original version which you have corrected; in the French version he used the term “naturelle”.

That means that in his own mind he prefers “naturelle” to “fondamentale”? I feel there is some ambiguity; so I am asking the question, in relation to the discussion which just took place with the Minister’ advisers.

The Joint Chairman (Mr. Joyal): Indeed, Mr. Tremblay. I believe the point is quite relevant and I would ask Mr. Robinson to answer in that spirit.

Mr. Robinson.

[Text]

Mr. Robinson: Mr, Chairman, to clarify, I was reading from the printed version of N-10 which made reference to the word “naturelle”. This was assuming that your amendment would have been accepted, I would have thought.

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This was printed on Friday before the representations on the provinces and other concerned individuals were heeded.

In the light of those, the concern which was expressed on that amendement, we have gone back to the original version of Clause 7 which deals with «Justice fondamentale». It is that particular phrase which would be modified by the amendment, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Senator Tremblay: A supplementary question. But on the substance of it do you prefer «naturelle» or «fondamentale»?

Mr. Robinson: Mr. Chairman, the proposed amendment refers to fundamental justice and does not change the concept of fundamental justice.

Frankly, I think the concept of fundamental justice will allow the courts some latitude to interpret provisions, life, liberty, and security of the person, in a way which may be desirable, as the Minister indicated a couple of weeks ago, for example, with respect to the detention of persons who are mentally ill and other persons; that the concept of natural justice is very narrowly defined in Canadian jurisprudence at this point to essentially deal with two points: the right to an unbiased tribunal, and the right to be heard.

There may be other attributes of fundamental justice going beyond that.

Senator Tremblay: Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

[Text]

The honourable John Fraser.

Mr. Fraser: Mr. Chairman, I am mindful of your admoninon of a minute or two ago that some of this discussion should probably have taken place at an earlier time.

But, cognizant of the fact that the words we pass are going to govern us, I would just like to enquire a little bit into this.

I direct this enquiry both to the Minister and to his law officers and I would invite my colleague, Mr. Robinson, to Comment if the Chair so permits and if it is appropriate to do.

But this is what is worrying me. The indication that we have from the law officers of the Crown—and the point Mr. Robinson is making—that the words “fundamental justice” have not yet been defined by the courts and, as a consequence, Mr. Robinson’s concern is that when they are defined there may be a definition which is more restrictive. more confining than we would like or we would be intending at the moment.

As a consequence of the well known rule that you cannot look to the intent of the legislation and that the matter has to be perceived from the words which are present on the page, what we intend to do here is of very little help to the court later when the matter is being dealt with or interpreted.

So, what I am saying is this. The first question is, if the Words of the Diefenbaker Bill of Rights, relating to principles Of due process of law were included, as Mr. Robinson pro-

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poses, is it in the opinion of the law officers of the Crown that the inclusion of those words would in any way derogate from what we are trying to do by using the words “principles of fundamental justice”?

That is my first question.

In other words, would the adding of the words “due process” in any way derogate from whatever rights we were attempting to grant to Canadians as a conseuqence of using the words “principles of fundamental justice”? May I have a response?

Mr. Strayer: In one sense, the answer is yes; in another sense, it is no.

Dues process would certainly include the concept of procedural fairness that we think is covered by Fundamental justice, but we think that “due process” would have the danger of going well beyond procedural fairness and to deal with substantive fairness which raises the possibility of the courts second guessing Parliaments or legislatures on the policy of the law as opposed to the procedure by which rights are to be dealt with. That has been the experience at times in the United States in the interpretation of the term “due process”.

Mr. Fraser: Do I take it that what you are telling us is that, in your opinion at least, by adding the words “due process” we could get a narrower interpretation of justice than we might be by just leaving the words “principles of justice”?

These are not easy concepts. They are terribly important right now, because if this Committee, not understanding what is at stake here, let it go on the original wording or accepts the change without understanding the implications, then some day somebody is going to wonder why we were asleep at the switch, and I am worried about it.

Mr. Strayer: Well, as I say, in our view, the use of the term “due process” would certainly also protect or require procedural fairness.

But it would have the other possibility of narrowing, as it were, the range of discretion of Parliament in matters of policy by possibly opening the door to the courts second guessing laws of Parliament on the basis of the policy involved rather than the question of procedural fairness.

In the United States “due process” was used from time to time in combination, for example, with a guarantee over property to provide a basis for courts to determine whether expropriation was justified in the circumstances as a matter of policy. whether the compensation was adequate and so forth.

It has been used to second guess public social measures. Mr. Robinson: On a point of order, Mr. Chairman.

The Joint Chairman: (Mr. Joyal): A point of order, Mr. Robinson.

Mr. Robinson: I am sorry to interrupt, Mr. Strayer. But in order for the Committee to understand this very clearly, there was an inadvertent, perhaps, inaccuracy which should be clarified.

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Article 14 of the United States Constitution which refers to due process of law, also refers to depriving a person of property without due process of law. That is where the problems have arisen with respect to substantive due process in relation to expropriation and so on.

There is no reference in this proposal to the deprivation of property, at least not as it stands now—to the deprivation of property without due process of law; and I think you will agree, Mr. Strayer, that that would tend to make the remarks which you have made to the Committee with respect to expropriation, for example, somewhat more tenuous.

Mr. Strayer: If I may respond to that, Mr. Chairman, I do not think this is the appropriate time to get into a legal debate.

I was simply using the property cases as an example. I think that is what I said.

But there are other potential problems of a similar nature inherent in Clause 7 if one adds the words “due process”; for example. the term “liberty”. “Liberty” at one time in the history of American jurisprudence has been interpreted to cover such things as liberty of contract; and this has been used as the basis for striking down minimum wage laws, because it contravened liberty of contract.

That is the kind of potential scope of the term “due process of law” which, in our view should be avoided by using the other term.

The Joint Chairman (Mr. Joyal): The honourable John Fraser.

Mr. Fraser: Thank you, Mr. Chairman.

I realize we cannot go on forever on this.

But I wanted to indicate to Mr. Robinson that I certainly was prepared to look long and hard at his suggestion.

But I think, Mr. Chairman, as a Committee we are almost in a position where we have to be guided by what is really the expert testimony of the law officers of the Crown.

If it turns out that the wording here as proposed is not adequate, then I suppose it has to be something which would go on the agenda for further constitutional discussion. That seems to be the fallback position all the time when we cannot quite resolve something here.

But I am accepting the advice, Mr. Minister, that you and we are receiving as coming down to this; that if we added the words “due process”, there is certainly the possibility in the minds of the law officers that we will narrow rather than expand the area of justice available to Canadians under Clause 7.

Now, if that is the case and the considered opinion, then I would not want to support Mr. Robinson’s amendment, although I think he has done us a signal service by raising the matter and pointing out the complexities of just what words can mean.

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

Mr. Chretien: I would just like to make a suggestion arising out of the discussion, because there might be a compromise here.

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Mr. Robinson is preoccupied because we used a new term “fundamental justice”. Earlier, there was an amendment proposed which was rejected a component of it; the word was “natural justice”.

If members of the Committee were more comfortable with the words “natural justice” rather than “fundamental justice”, we could accept “natural justice” rather than “fundamental justice”, because one has been used before—natural justice has been a term used before the courts, and “fundamental justice” is a new phrase.

So if members of the Committee are more comfortable with the words “natural justice” we are willing to accept it.

But the advice I have received is that “fundamental justice” is perhaps more appropriate, but perhaps marginally so, and I am willing to accept “natural justice”.

It could cope with some of the preoccupation of the Committee, and it was dropped because the motion in the previous amendment was including the two parts, and the phrase “natural justice” would have been acceptable to us.

We can accept that as part of the earlier rejected amendment and take “natural justice”; and for “due process of law”, my legal advisers have said that the scope of it, what it might create, if we were to inscribe it and limit even more the powers of the legislatures and give the power to the court to look at, not the form but the substance of the legislation that would be passed in Parliament, would limit very much the legislative power of the different parliaments in Canada.

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Mr. Chairman, I had some questions with respect to due process.

My colleague, Mr. Fraser, has perhaps more advantage in this particular instance, in that he has studied the law.

My questions will be a little more pedestrian.

Could either the Minister or any one of the gentlemen present tell me what is the difference between natural justice and fundamental justice?

That is the first question. What is the difference between natural justice and fundamental justice, and how are either or both of those related to the phrase and therefore the concept “due process of law”? What do those mean? I am having trouble.

Mr. Strayer: The term “fundamental justice” appears to us to be essentially the same thing as natural justice.

It is interesting that this question was debated in 1960 when the Canadian Bill of Rights was before Parliament, as to whether to include the term “fundamental justice” or “natural justice”. They finally settled on “fundamental justice”.

But one of the leading commentators on the Bill of Rights, Professor Tarnopolsky, reviewing that debate at that time and the jurisprudence since has said that it appears to him that the two terms are essentially the same.

Mr. Crombie: What are they?

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Mr. Strayer: Well, fundamental justice or natural justice both involve procedural fairness and that is the content of them.

The requirements of natural justice certainly have been pretty well defined over the years by the courts. The term “fundamental justice” has not been used very much in legislation, although it does appear in the Canadian Bill of Rights. But we have assumed it meant about the same thing. Those two terms can be contrasted to due process.

Mr. Crombie: I am sorry to interrupt, but I want to understand clearly this matter. What I understand so far is that by and large the term “natural justice” and “fundamental justice” I can take as meaning roughly the same thing.

Secondly, that those two phrases relate to procedural fairness; that is what you are saying. What does that mean?

Mr. Strayer: It depends upon the circumstances; but the general concept is that a person has to be notified that his rights are likely to be affected by some action if it is a procedure, if it is a process—what lawyers call a quasi-judicial process involving the determination of rights; then it requires that the person not only should have notice, but should also have an opportunity to be heard and that he should hear the other side of the case prejudicial to him and that he should have a chance to respond to that.

The content will depend somewhat on the nature of the process.

If it is a purely discretionary power being exercised by a government officer, the procedural requirements may be less than if it is a matter involving rights.

Mr. Crombie: When I say that I or my constituents are entitled to fundamental justice in relation to life, liberty and the security of person, is there an agreed upon number of things that they are now entitled to, and what are they?

My concern is this. I do not want to either bore you or bore the Committee, but I like the sound of natural justice; I like the sound of fundamental justice; and due process sounds terrific. I am just not sure, since there is now some debate, as to whether we want one or two or three or all of them. For example, do I have the right to be heard? Do I have the right to know the nature of the accusation? Do I have the right to hear from my accusers? Do I have the right to have received a notice of a hearing? Do I have the right of an independent tribunal in all of those three concepts? Do those six things happen in natural justice, fundamental justice and in due process or is one or two of them missing in one of those three?

Mr. Strayer: I would say basically, Mr. Crombie, that they are covered by all of those terms.

Mr. Crombie: So whether I am talking natural justice or fundamental justice or due process, I get all of those six things?

Mr. Strayer: Yes.

Mr. Crombie: That clears up a lot of it.

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I have a second area of questioning, if I could, Mr. Chairman. My understanding of due process is as an American contrivance in order to deal with both procedural and substantive justice, that is to say it must be done fairly and I must be treated fairly.

My understanding was that first of all the concept of due process was used to enforce the American bill of rights on the United States, is that correct?

Mr. Strayer: Yes, that is correct.

Mr. Crombie: If I use the word “due process” will that have the same effect here, that it enforces the bill of rights on the provinces?

Mr. Strayer: When I said that due process was used to enforce the bill-of rights on the United States, I only meant that there were things in the bill of rights which had effect on the United States; the guarantee of due process has a hearing on various things that the United States does, but that term by itself was not the means by which the bill of rights was applied to the United States.

Certain articles of the bill of rights govern the United States, particularly the fourteenth amendment which is the one which is most commonly used against the United States, and it, by its terms, binds the United States, and in this Charter there are specific sections which bind the provinces. So in both cases the instruments have a specific provision which makes them applicable to the state or province.

Mr. Crombie: Well, let me make sure of my understanding. My understanding was that the “due process” clause in the American constitution was the vehicle by which the bill of rights was enforced as against the United States, is that true or not true?

Mr. Strayer: I think it is not accurate to put it that way, sir.

Mr. Crombie: Let me put it this way. I have before me from the 96th Congress the citizen’s guide to individual rights under the constitution of the United States of America, and under due process of law it says this simple. clear, unequivocal sentence, and I would like to ask you to tell me what you understand by it when I read it to you.

Most of the specific provisions of the Bill of Rights have been applied to the States through this clause.

What does that mean, “through this clause”? Does that mean that the due process clause is the vehicle by which the specific provisions of the bill of rights have been applied to the United States?

Mr. Strayer: Yes, I understand in that context what you are saying.

Mr. Crombie: To the extent that that happened in the United States, will this happen in Canada with respect to the provinces?

[Page 41]

Mr. Strayer: I think not in quite the same way, sir, no, because our charter spells out certain things that the American Bill of Rights does not spell out. For example, we have a specific provision with respect to legal rights that is more detailed than the American constitution. We have mobility rights and, of course, we have other things in here such as minority language education rights; so that I think it is fair to say that there will be other sections of our Charter which will tend to have considerable application and you would not look to Clause 7 as being the main section bearing on the provinces. A number of other sections will also bear on them.

Mr. Crombie: You do not have any examples so that I could understand what that means?

Mr. Strayer: For example, in the administration of Justice Sections, the sections which follow Clause 7-8, 9, 10, 11, because the provinces have responsibility for the administration of justice, they are the ones who administer the criminal law form day to day and these sections will obviously have a good deal to say about the way in which they administer justice.

Mr. Crombie: Would not that happen if you did not have the due process clause in it?

Mr. Strayer: Conceivably. If we did not have Clauses 8, 9, 10, 11 . . .

Mr. Crombie: But we have that right now. Do we not have that now?

Mr. Strayer: Not constitutionally guaranteed, no.

Mr. Crombie: I am trying to find out what I gain by having the due process clause in there.

Mr. Chrétien: In simple terms, you are giving more power to the courts over the substance of the legislation that a different legislature will pass in Canada. That is what Mr. Strayer was telling you, and the problem is there.

Mr. Crombie: But I am not sure what that extra power is and maybe that is the nub of my problem because a moment ago the law officers of the Crown advised, Mr. Chairman, that natural justice, fundamental justice and due process meant the same thing at least as it relates to these six events. So far I have stuck in my head that they are meaning the same thing. When the Minister says it gives more power to the courts. what is more power?

Mr. Strayer: Perhaps it is because I did not answer your second question at the outset, Mr. Crombie. I wanted to say that while those procedural requirements which you referred to are embraced in each of these three terms. natural justice, fundamental justice and due process, it must also be said that due process possibly goes beyond that area; it goes farther than the other two in having what has been called a substantive content, and the American courts particularly at one time in the history of their judicial thinking, gave a good deal of substantive content to due process; for example, in interpreting a similar provision in the American Constitution, interpreted liberty to include liberty of contract and they said not only can you not take away that liberty by a fair process, but you

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cannot limit the freedom of contract by a minimum wage law, for example.

Mr. Crombie: Natural justice and fundamental justice do not deal with substantive matters, only procedural fairness, that is the difference between those two and due process?

Mr. Strayer: Yes.

Mr. Crombie: I have one final question.

With respect to due process and the substantive aspects of it, having no regard now for the procedural fairness, my understanding, again from my wee citizen’s guide is that by the time the 1930s came along in the United States, the restraints which the court had previously put on legislators were removed and that by and large the substantive aspect of due process was not related to property but indeed became more related to privacy of personal rights, is that correct, in your view, in your understanding?

Mr. Strayer: I think that is a fair comment, sir, yes.

Mr. Crombie: Throughout American jurisprudence, as I understand it, the whole development of the due process clause. both procedurally and substantively, but more particularly substantively, evolved around questions relating to the rights of property and the rights of privacy. Would you say that is true?

Mr. Strayer: That is certainly true of property. I think the privacy question is one of much more recent development.

Mr. Crombie: If our charter of rights does not include either the right to property or the right to privacy, then I suggest to you, and I would like your comment, that the due process clause will not work ‘the same way as it does in the United States because by and large it was the operation of the due process clause on property rights and personal privacy rights, and we are not including those in our charter.

Mr. Strayer: It is true that property will not be included, but liberty and security of the person would be included and I should think that that combined with due process, could get the courts into the business of defining privacy rights, for example.

Mr. Crombie: Let me conclude, if I could then, Mr. Chairman, because I think I understand what you are saying now and I think I have some difficulty with the amendment proposed, unless I hear from Mr, Robinson again, because again in my citizen’s guide on page 21 it says “This clause”, the “due process” clause, “has a substantive aspect as well,” as you point out, sir,

protecting individuals against deprivation of important property and liberty interests. Substantive due process for a significant period of American history was held to preclude government from regulating many forms of economic activity.

We all know the history of that. They finally broke that down to court problems in the 1930s and so on.

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While these restraints were abandoned in the 1930s, the court,

the American Supreme Court,

now accords the protection of substantive due process to certain fundamental personal rights. Foremost among these is the concept of the right to privacy, which to date has been limited largely to matters involving marriage, procreation, and the parental care of children.

And I ask you then finally, what effect will the inclusion of the due process clause have on the question of marriage, procreation, or the parental care of children?

Mr. Strayer: Mr. Chairman, I am sure that anything I could say would be purely in the realm of speculation, but it could be seen to open the door to the courts dealing with the question of abortion, that sort of thing, contraception, which has been dealt with by the American courts. In other words, the courts would be making these policy decisions instead of Parliament.

Mr. Chrétien: The point, Mr. Crombie, that it is important to understand the difference is that we pass legislation here on abortion, criminal code, and we pass legislation on capital punishment; parliament has the authority to do that, and the court at this moment, because we do not have the due process of law written there. cannot go and see whether we made the right decision or the wrong decision in Parliament.

If you write down the words, “due process of law” here, the advice I am receiving is the court could go behind our decision and say that their decision on abortion was not the right one, their decision on capital punishment was not the right one, and it is a danger, according to legal advice I am receiving, that it will very much limit the scope of the power of legislation by the Parliament and we do not want that; and it is why we do not want the words “due process of law”. These are the two main examples that we should keep in mind.

You can keep speculating on all the things that have never been touched, but these are two very sensitive areas that we have to cope with as legislators and my view is that Parliament has decided a certain law on abortion and a certain law on capital punishment, and it should prevail and we do not want the courts to say that the judgment of Parliament was wrong in using the constitution.

Mr. Crombie: Thank you very much, and thank you Mr. Chairman. I know I spent some length of time.

Senator Connolly: May I ask a supplementary here?

The Joint Chairman (Mr. Joyal): I will certainly invite honourable Senator Connolly after I have thanked honourable David Crombie.

Honourable Senator Connolly.

Senator Connolly: I have been very interested in what my learned colleague Mr. Crombie has been discussing, and I just wonder whether it does not fortify the position that he has made so clear to us all to look at the world in Clause 7 as amended—no, I guess there is no amendment—it is repro-

[Page 44]

duced. The word “deprived”; it sets out the fact that everyone has the right to life, liberty. security of persons and “not to be deprived thereof except”, so you talk about the substance of right in the first place: you talk about the process by introducing the word “deprived” and I think it is restricted to the process in the light of the explanation the Minister and the officials have given. That might help you a bit.

Miss Campbell: Mr. Chairman, just a point of information to Mr. Crombie, if I might.

Perhaps the Canadian public would like to have the address of that nice little citizen’s book you are using.

Mr. Crombie: It is the last one that i would be willing to offer the government actually at a reasonable price.

Miss Campbell: Just the address.

Mr. Crombie: It is made in Canada, printed in Cabbagetown actually.

Miss Campbell: You did not give us the title.

Mr. Crombie: Citizen’s Guide to Individual Rights Under the Constitution of the United States of America. prepared by the Subcommittee on the Constitution of the Committee of the Judiciary. They are sort of like us. It gives you something to think about.

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

Mr. Robinson, to conclude on the proposed amendment.

Mr. Robinson: Yes, Mr. Chairman, I have listened with interest to both the questions of Mr. Crombie and Mr. Fraser and the answers of the Minister’s legal advisers and, indeed, of the Minister himself, and I do come back to the position that. as I indicated earlier, this particular proposal, the proposal that we deal with due process of law and not with this totally novel concept of fundamental justice in this context was a proposal which was deemed to be quite proper and quite acceptable to the federal government in February of 1979, in July of 1980, and in August of 1980. I can only wonder, Mr. Chairman, because it was the same advisers, exactly the same advisers in August of 1980 who suggested that Section 6 of that draft should read:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof expect by due process of law,

one can only wonder what bolt of lightening suddenly struck them and suddenly made them realize that there was some substantive concern with respect to due process of law.

We have not yet heard what it was that caused this change between August 22 and September 8, what particular jurisprudence it was that resulted in this change.

Mr. Chairman, I have listened with interest, as I say, to the arguments of my friends. It would be my submission that we should not lose the jurisprudence that has been built up in Canada so far in the question of due process of law and for that reason and because of the arbitrary and undelinable nature of fundamental justice, whatever that may mean, that

[Page 45]

we should maintain the concept of due process of law, recognizing that it does not apply at all to property.

Finally, Mr. Chairman, to deal with the concern of Mr. Fraser. that this might in some way narrow the concept of fundamental justice. I would point only to the fact that we are talking about this as an inclusion to the concept of fundamental justice.” It says, “fundamental justice, including the principles of due process of law”. So anything that is incorporated within fundamental justice is continued, but we are making very clear that the jurisprudence with respect to due process is carried on in Canadian law.

Thank you, Mr. Chairman.

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

I would like to call the vote on the proposed motion, that Clause 7 amended by adding thereto immediately after the word “justice” the following:

including the principles of due process of law.

Amendment negatived.

I would like to call the next amendment. It is the one with the number N-11, Clause 7, page 4, and it is an amendment moved by the NDP party.

I would like to invite Mr. Robinson to make the usual presentation.

Mr. Robinson.

Mr. Robinson: Yes, Mr. Chairman, I will try to be as brief with this one as we were with the last one.

I move that Clause 7 of the proposed constitution act, 1980 be amended by (a) adding immediately after line 27 on page 4 the following:

8. Everyone has the right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.

Mr. Chairman, I do not know whether you wish to deal with both (a) and (b) together. They cover somewhat different areas. I would suggest that we deal first with the right to a fair hearing in Clause 7(a) and then turn to the right to privacy in Clause (7)(b). but I am in the hands of the Chair on that.

If we could perhaps deal with the right to a fair hearing first, that is Clause 7(a).

En français il est proposé:

Que le projet de loi constitutionnelle de 1980 soit modifié par

a) adjonction, après la ligne 28, page 4, de ce qui suit:

Audition impartiale—«8. Chacun a droit a une audition impartiale de sa cause en conformité avec les principes de justice fondamentale pour la determination de ses droits et obligations.»

[Page 46]

Mr. Chairman, this concept of a right to a fair hearing is one which has been alluded to in questions earlier to the Minister and which has also been raised by many witnesses appearing before this Committee as one of the fundamental rights which must be protected in a free and democratic society.

It is a concept which is contained once again within the Canadian Bill of Rights, at Clause 2(e), Mr. Chairman. and I would like to just make brief reference to that.

Clause 2(e) refers to the right not to be deprived of the right of a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations. In addition, Mr. Chairman, each of the successive federal proposals before the provinces and, indeed, the Committees which have considered this matter, have felt that this right to a fair hearing was fundamental.

The 1972 Molgat-MacGuigan Committee Bill C-60, made an explicit reference to the right to a fair hearing which would apply both at provincial and federal levels. This was supported by Senator Lamontagne and Mr. MacGuigan in their report on Bill C-60.

The February 1979 proposal before the First Ministers also included the right to a fair hearing, and finally, in July of 1980. Mr. Chairman, the Minister himself stated that this particular right was an essential right.

I do not know, Mr. Chairman, if the Minister is going to be returning.

Mr. Strayer: Yes.

Mr. Robinson: I see. I will not explicitly refer to the Minister’s statement until he has returned, to give him an opportunity to deal with that, but Mr. Chairman, I think in suggesting why it is so important that this right to a fair hearing be included within a constitution of Canada, I can do no better than to quote from a brief of the British Columbia Civil Liberties Association at page 10, and I will just quote from their section on the right to a fair hearing:

In his 1969 proposals regarding a Charter of Rights, Mr. Trudeau suggested that the Charter should guarantee the right of a person to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. Such a provision is included in the 1960 Statutory Canadian Bill of Rights, but no such provision is included in the present government proposals.

The British Columbia Civil Liberties Association believes that such a provision should be included and that its language should be changed so that statutory tribunals and administrative agencies are clearly covered by its wording, and this is the important point:

It is not only in criminal proceedings that individual rights need clarification and protection; citizens today face an array of government agencies which may reach into every aspect of their lives.

[Page 47]

Mr. Chairman, all we are suggesting in this proposed amendment is that when there are fundamental decisions which are being made, not just about criminal law, but which many directly affect the lives of the people of Canada, that they have the right to the principles of fundamental justice as they have assumed that they have had for some considerable length of time.

In many instances administrative decisions are made which affect a citizen drastically and directly and which may appear to be arbitrary. unfounded and wrong, and the citizen may have great difficulty in even determining what the reasons were for a particular decision. The reasons may not be published, they may only be available to agency personnel.

They conclude by saying that because of this proliferation of administrative and statutory tribunals and their effect, and it is a serious effect, on the lives of Canadian citizens, we believe that this right to a fair hearing must be included in the new constitutional Charter of Rights and Fundamental Freedoms.

The concept of this fair hearing would explicitly include all instances of decision-making where a person’s rights and obligations are to be determined, and they say only in this way will today’s citizens find the traditional right to a fair hearing relevant to his circumstances and a proper safeguard to his rights.

Mr. Chairman, that is the purpose of this proposed amendment. I would invite honourable members to support the amendment, to recognize how important this is in Canadian society today, and I would like to conclude by quoting from the Minister himself. Mr. Chretien, in a statement which he made to the Continuing Committee of Ministers on the Constitution in July of last year, and I am quoting now directly from the Minister:

In deciding which rights should be included in this Charter, we have selected only those which we feel reflect the central values of our society. Each of the rights we have listed is an essential ingredient for the Charter and all our rights which all Canadians should have, regardless of where they live in our country.

Mr. Chairman, one of the fundamental rights which the Minister was referring to in that statement was the right to a fair hearing for the determination of a citizen’s freedoms and obligations. If that right was fundamental, if that right was central and essential in July of 1980, I can only assume that that right is still fundamental and essential today.

Thank you. Mr. Chairman.

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

I would like to invite Mr. Jean Lapierre.

Monsieur Jean Lapierre.

[Page 48]

[Translation]

Mr. Lapierre: Thank you, Mr. Chairman.

I am going to take part in this debate, and this time, I will take the Minister of Justice to witness.

The amendment suggested by my friend Mr. Robinson in the name of no direct interference with the provinces, a thesis which be debated so well concerning property rights, I think his logic should apply to this clause which could have many implications with the provinces if, for example. we think about the issuing of drivers’ licences or the issuing of all kinds of other permits that provinces issue on a regular basis.

I think that the provincial governments. if they had another weekend to consult, would object very strongly to that and that is why we believe it is not necessary at this point and that it would be going a bit too far in the administration of provincial governmental and paragovernmental agencies.

As he said, this section is included in the Canadian Charter for the Federal Government and we have accepted to be bound by it but at the provincial level it would be going a little too far and I would ask him to think a bit more about the direct intervention we would then be making especially in the area of permits. That is why we think this amendment is not proper.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre.

[Text]

The honourable James McGrath.

Mr. McGrath: Can I ask Mr. Lapierre a question? Mr. Lapierre, are you speaking on behalf of the government on this particular amendment? I would just like to get that straight.

Mr. Lapierre: That is why I said that the Minister of Justice was witnessing this time.

Mr. McGrath: But you were speaking on behalf of the government?

Mr. Lapierre: That is our position, as a member that is my position. I cannot speak on behalf of the government, for now at least.

Mr. McGrath: I just wanted to know when you are speaking on your own behalf and when you are speaking on behalf of the government.

Mr. Lapierre: I would never speak on behalf of the government before I am in Cabinet.

Mr. McGrath: Again, you learned your lesson last week.

Mr. Lapierre: Yes, I did.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre.

[Text]

So the Chair sees no other speakers on the proposed motion, I would like then to call the vote, but before calling the vote, ask for Mr. Robinson to conclude on the proposed motion.

Mr. Fraser: Just a minute, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable John Fraser.

[Page 49]

Mr. Fraser: I wanted to ask a couple of questions.

We have listened to Mr. Lapierre, through you, Mr. Chairman, to the Minister, and I would like to hear from the law officers of the Crown as to whether or not they think that this particular clause is going to so impinge on the provinces that they cannot issue a driver’s licence or anything else. I would just like to know what substance there is in that statement?

It is an easy statement to make, but i look at that clause and I do not, frankly, see how that is going to interfere with the administration of the Motor Vehicles Branch in the province of British Columbia, but if somebody can convince me that it will, I am certainly prepared to listen.

Mr. Chretien: I will ask Mr. Tassé to reply to that question, he was involved in the discussions with the provinces on the matter.

Mr. Roger Tassé, Q.C. (Deputy Minister Department of Justice): Last week, I think it was, Mr. Fraser, I indicated that there have been recent decisions of the Supreme Court of Canada that have, in effect, decided that the concept of fairness should apply to administrative proceedings.

When we look at that section of the Bill of Rights right now, that requires that in effect the right to a fair hearing be extended in accordance with the principles of fundamental justice, when the rights and obligations of a person are being determined; we had always thought that in effect that right to a fair hearing would apply in civil or administrative proceedings that were of a judicial or quasi-judicial character, and that this principle did not extend to administrative proceedings like the granting of licences, and so on, so forth.

However, this recent decision of the Supreme Court, Martineau and Nicholson, has in effect extended possibly the principle of natural justice which is included in that principle of a fair hearing to this other level of administrative activity that both the federal and provincial governments are involved in. Until we know further from the courts as to what is the exact scope of the right to a fair hearing, where there is some uncertainty as to exactly what this meant, and if we were at this time to constitutionalize and entrench the principles of fundamental justice and the right to a hearing in accordance with the principles of fundamental justice, in effect we could be saying that not only should this right apply in terms of decisions that are required to be made judicially, but also we may be saying that this right should apply in terms of the administrative activities that governments get involved in and it would not be possible, because it would have been entrenched, for the legislature to provide for special procedures that we feel, at the administrative level anyway, in licencing, for example, activities, municipal licencing at the local level requires that, in effect, there be some exceptions to the rules that apply in decisions that are required to be made in accordance with the principles of natural justice as is set out in Clause 2(e), and as the courts have over the years decided in matters in the provincial area.

In effect we would be taking away from the provinces the possibility, possibly, of designing their administrative decision making at the provincial or municipal level in such a way as

[Page 50]

these things can be done fairly, not necessarily in accordance with the more extensive and the more sophisticated procedures and principles that apply where a decision needs to be made judicially or quasijudicially.

So in effect I suppose I am saying, in a nut shell, because of these recent decisions of the Supreme Court, the right to a fair hearing and the scope of its application is in a state of uncertainty at this time and that it would be unwise to constitutionalize and entrench the right to a fair hearing in accordance with the principles of fundamental justice because we might unwittingly be extending that right beyond those areas where the decisions need to be made judicially or quasi-judicially to the area of the administrative decision making process where these principles do not apply now.

Mr. Fraser: Well, Mr. Chairman, I have got to say that I am concerned about this because my own experience in practicing law has been that fairness in purely administrative decisions is a very hard thing to achieve and it is well known to lawyers that it is often difficult to upgrade an administrative decision into a quasi or judicial decision where the principles of natural justice would apply.

I find it awfully difficult to accept that whether it is an administrative decision or a quasi-judicial decision made by bureaucrats. that a Canadian citizen ought not to get a fair hearing.

Senator Connolly interjects, and he is absolutely right, the prerogative writs have been a remedy but the difficulty is that you then have to establish a qualis-judicial or a judicial nature in the proceedings and almost every lawyer who has acted for citizens against the massive complexity of the modern bureaucracy has wondered somehow why we have this quite unfair distinction between the right to do anything you want on an arbitrary basis with respect to the citizen as long as it is called administrative, but the minute it is called judicial, in the sense of determining their rights in a more profound way. then and only then do the principles of natural justice apply.

If the Supreme Court of Canada is now saying, in its wisdom. the principles of natural justice ought to be extended farther than they have been extended during the 50 or 60 or 70 years of Canadian administrative law that took an extremely narrow view on these things. then I can only say that the Supreme Court of Canada is leading instead of following and is starting to learn as do common law lawyers that the pride of the common law was that our freedoms and liberties broadened down from precedent to precedent instead of narrowed down from one restrictive case to another.

I must say that personally I am just not persuaded that this amendment would cause the mischieve that Mr. Lapierre thinks or that Mr. Tassé, whose legal opinion I certainly respect, believes it would cause.

I find it extraordinarily difficult to accept the strictures that are being imposed on us by those that argue against this. I aslo have to add that if the government is concerned, if they have suddenly become concerned about an imposition on the prov-

[Page 51]

inces, that concern does not extend to the profound problems of the amending formula and other things, all I can do is invite the government to follow our procedure and put this, if this is what we believe then put this in front of the provinces for further discussion. If a case can be made whereby it would make it impossible to administer, the government of the provinces or the Government of Canada, because that must be part of the concern. the only bureaucracy in the country is not the provinces’, there is a huge bureaucracy in the federal government, the case can be made where there are instances where this would confound the ordinary and effective administration from day to day and exceptions can be found to it at that time.

However, I must say that I am deeply concerned when, in the Charter which is trying to establish the rights of Canadians, especially the rights of Canadians vis-à-vis the massive and impersonal kind of bureaucracy with which the Canadian citizen has to deal, that the government would be seriously arguing against this amendment.

Mr. Chrétien: M. Fraser, I would like to point out to you that in relation to the federal level this aspect of the problem is covered in the Bill of Rights and would still be applicable, and through the Bill of Rights it covers the federal administration and the clause is Clause 2(e), which speaks of the right of the private person to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.

Mr. Fraser: Well, I recognize that,

Mr. Chrétien: And if you enshrine it in the constitution we are bound by it but we will be binding the provincial governments on that issue. We are covered federally because you have referred to the federal bureaucracy, we are covered here by the Bill of Rights, but if we were to enshrine it in the constitution you will impose it on the provinces and we say that they have their provincial Bills of Rights, there is legislation that can be passed to protect the citizen against abuse of administration provincially and it is not for us to impose our standards on them.

Mr. Fraser: Just one response, Mr. Chairman . . .

The Joint Chairman (Mr. Joyal): It will be your final question, Mr. Fraser.

Mr. Fraser: I have got great respect for the Minister but the Ministers answer just once more has illustrated just how bizarre this whole exercise is. When the Minister does not want an amendment he says it is because it is encroaching on the provinces. but when he wants to encroach on the provinces he says it is in the absolute interest, the public interest and the rights and freedoms of Canadians that the provinces be encroached upon. There is absolutely no consistency. What is happening, this Charter has picked up chunks of the Canadian of Rights and decided that you are going to put it in? Why?

[Page 52]

You are going to put it in because you think those rights ought to be entrenched, but in the case of other things you play both sides against the middle.

Mr. Chretien: You do not want to entrench, and you want me to entrench. Make up your mind!

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

The Joint Chairman (Mr. Joyal): A point of order, Mr. McGrath.

Mr. McGrath: Surely, Mr. Chairman. the hon. member should be entitled to finish his intervention without this kind of interruption by the Minister of Justice.

The Joint Chairman (Mr. Joyal): Mr. Fraser, I will invite you to proceed with your intervention.

Mr. Fraser: Thank you very much, Mr. Chairman.

The Minister forgets—and I am sure he would want me to respond very calmly to his interventions; but he forgets that the Conservative position is that we, here, as a federal House of Commons. are told to bring forward what we think would be a good set of rights and a good amending formula, and then report that proposition to the provinces and sit down and talk with them a little further to see whether we can get as much agreement as we can on that.

You see, we are not unilaterally imposing; and I am sure the Minister does not intend to mislead the public who are watching us. We are not unilaterally imposing.

What I am saying is that if we are to sit here and take this exercise seriously and talk about the question of rights and get into the whole field of what rights does a citizen have in dealing with a massive bureaucracy and the bureaucracies we have in the country, why should that not go forward just as legitimately as the other propositions that the Minister wants to go forward? That is my only point. I do not think I need press it further.

I think I have made the point that I see nothing to be afraid of in that clause, and I do not think it would bring the ordinary administration of the provinces or any other body of government to a halt, and if the Minister is as serious as he says, and as is set out in the Bill of Rights—exactly the same clause is binding and applicable on the federal bureaucracy then, surely, you could not really have fear that it would bring provincial administrative bureaucracies to a halt; because if it would bring their bureaucraies to a halt, then why would it not bring the federal bureaucracy to a halt?

Mr. Chrétien: I have just said that we are bound federally with the federal administration, and if the provincial administrations want to bind themselves with the same privileges and rights they can do so. That is the only point I am making.

And what you are proposing—and you are objecting to the process: but because I know it would be in the Charter of Rights and inscribed in the Canadian constitution, if we were

[Page 53]

to accept it it would be binding on the provinces and we do not want to bind the provinces.

You may say that you would discuss that further. If the provinces want to discuss the matter further and if we think that the provinces should have the same obligation, we will discuss that and if the provinces want, in the second round of the constitutional debate, to have it enshrined in the constitution, we will not object, because already we have that protection for the citizen in relation to the federal bureaucracy.

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

Madam Campbell.

Miss Campbell: Mr. Chairman, I have one question for the Minister or his officials.

It seems to me that this proposed amendment is taken care of in the larger Clause 24. Anyone who has the rights and freedoms under that clause can apply to a court.

So you are going to get a fair hearing, I would assume, if You think your rights and freedoms have been infringed upon.

If you are relating it strictly to administrative tribunals, I would agree with the Minister that the provinces have their own sources.

But think procedural fairness under administrative tribunals is the key thing there.

I would hope that the new clause we would be proposing in Clause 24 would take care of that.

Mr. Chretien: I am sorry, but I cannot agree with you.

Miss Campbell: I would use it.

Mr. Chretien: You can try; but it is not the interpretation I would give at this time. But I think it would not apply to that in provincial jurisdictions. It would apply to federal jurisdiction, but not on provincial jurisdictions.

Miss Campbell: They would apply to rights and freedoms under this Act.

Mr. Chretien: Yes, under this Act; but we are not covering the provincial problems.

What Mr. Robinson would like to have—he would like an amendment that will entrench what we have in the Bill of Rights for federal administration and to apply to the provinces, too.

If it were to be entrenched, Clause 24 would apply as a remedy; but it is not entrenched in the constitution; but for the federal side of the problem, it is covered in the Bill of Rights.

Because of the Bill of Rights, I guess one could use Clause 24 to get a remedy in relation to the Bill of Rights.

Miss Campbell: In relation to this act.

Mr. Chrétien: Yes, but it is in relation to the provincial aspects.

Miss Campbell: It is related to any rights or obligations…

[Page 54]

Mr. Chrétien: But this right will not be in the Charter.

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

Mr. Robinson, to conclude on the proposed amendment.

Mr. Robinson: Mr. Chairman, I would like to respond to some of the points which have been made, in particular by Mr. Lapierre; because if ever there was an example of a red herring being thrown into a debate, it was the reference to a driver’s licence somehow being affected by this proposal.

First of all, the question of drivers’ licences. It is dubious, to say the least, that a court might consider that there is any right or obligation on the part of the provincial government to grant a driver’s licence.

A driver’s licence is a privilege. It is not something which is considered to be a right or obligation.

In determining this question of rights and obligations that is precisely what we are talking about—rights and obligations: not privileges which might exist from time to time.

To talk about drivers’ licences, which are purely discretionary on the part of provincial governments, as I say, has no application whatsoever to this particular proposal.

The Deputy Minister of Justice, Mr. Tassé, has referred to certain concerns about the evolution of jurisprudence in the Supreme Court of Canada and referred to the Martineau case and the Nicholson case.

The Deputy Minister will know very well that while these have been classed as administrative decisions by the Supreme Court of Canada, in both cases they involved prisoners and we were dealing with very fundamental questions of punishment and deprivation of liberty.

The Minister will be aware that that is a far cry from a denial of a drivers licence for whatever ground a provincial government may choose to deny it upon.

The Supreme Court of Canada said that there were certain obligations of fairness; and when you are denying these fundamental rights and liberties, and when you are punishing somebody, that Canadians were entitled to fair treatment, and that Canadians were entitled to fair treatment when their rights and obligations are being determined.

Mr. Chairman, the Minister has suggested that we do not want to impose this on the provinces.

Well, Mr. Fraser has indicated that if this is a fundamental value, if indeed the Minister felt and continues to feel, as he felt in July—and I have quoted from his statement—that this is a right which was a central value, that it was one of the essential rights which was so basic in our society that it could not be disregarded, well, if it is that basic, then surely it should be included in this package of rights.

Mr. Chairman, I would hope that the independent members on the Committee, having listened carefully to the arguments, and having all of the members of this Committee, having listened to the arguments very carefully, Mr. Lapierre, recognizing the error of his ways in referring to drivers’ licences,

[Page 55]

might now come to see the light and support this very fair and reasonable proposal.

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

It is now clear that members are ready for the vote.

Mr. Robinson: Mr. Chairman, may we have a recorded vote, please?

The Joint Chairman (Mr. Joyal): Yes, that will be done. I will first read the proposed amendment.

The proposed amendment is:

That Clause 7 of the proposed Constitution act, 1980 be amended by

(a) adding immediately after line 27 on page 4 the following:

Fair Hearing

8. Everyone has the right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations.

Amendment negatived: Yeas, 10; Nays 14.

The Joint Chairman (Mr. Joyal): The motion is defeated by a vote of 10 to 14.

Some hon. Members: Shame!

The Joint Chairman (Mr. Joyal): We will adjourn until 3:30 pm. this afternoon.

[Translation]

The meeting is adjourned.

[Text]

AFTERNOON SITTING

The Joint Chairman (Mr. Joyal): Order please. May I request the honourable members to take their seats so we can resume consideration of Clause 7 of the proposed resolution.

Before I invite Mr. Robinson on the motion or amendment that he wants to make on Clause 7, I would like to inform honourable members that there has been a Subcommittee meeting or a meeting of the steering committee on agenda and procedure at 12 o’clock this morning and your Subcommittee had agreed to make the following recommendations:

(A)—That, with respect to the matter of time allocation to be given to the consideration of the joint resolution,

1. the mover of any amendment or subamendment shall be entitled to a maximum of five minutes to present the amendment or subamendment;

2. members of the Joint Committee shall be entitled to speak once only to any amendment or subamendment for a maximum time of three minutes;

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3. the mover of any amendment or subamendment shall be entitled to a maximum of three minutes to conclude;

4. members of the Committee shall be entitled to a question to the Minister on a clause with a supplementary question to be allowed at the discretion of the Chair.

(B)—That the sitting hours of this Joint Committee be as follows:

Tuesday, January 27, 1981—3.30 p.m. to 6 o’clock—8 o’clock to 10.30 p.m.

Wednesday, January 28, 1981 3.30 pm. to 6 o’clock—8 o’clock to 10.30 pm.

Thursday, January 29, 1981 9.30 a.m. to 12.30 pm.—3.30 pm. to 6 o’clock—8 o’clock to 10.30 p.m.

(C)—That the Subcommittee on Agenda and Procedure meet on Thursday, January 29, 1981 at 6 o’clock to evaluate progress.

Respectfully submitted,

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

So, I understand that on all respects that is the recommendation that on behalf of the Subcommittee I would present this afternoon to the honourable members of this Committee.

Honourable Perrin Beatty.

Mr. Beatty: Mr. Chairman, I just wonder if, before the Committee considers this, if I could get some clarification.

I am in favour of expediting the activities of the Committee as much as possible but one concern, though, and that relates to the (b) portion where hours would be set for the Committee.

As I understand it, the previous report of the Subcommittee gave the Committee specific hours of sitting, that is Monday, Tuesday, Wednesday, Thursday and Friday for the duration of the period. Now, do I understand and am I correct in coming to the conclusion that if the Committee were to accept the (b) portion of this report, that that would wipe clean that slate where the Committee before had committed itself to having hearings at a certain time?

The Joint Chairman (Mr. Joyal): What that recommendation means, in effect, is that for those three days, which is today, tomorrow and Thursday, the sitting hours are as follows, but for the rest of the days we come back to our usual sitting hours, which is 9:30 a.m. to 12 o’clock and 3:30 pm. to 6 o’clock and 8 o’clock to 10 o’clock, but unless there are other recommendations, and you will see that the Subcommittee recommends that it meets on Thursday to evaluate progress and see if there is a need to maintain the old agenda of sittings or to have an additional extension depending on what progress has been made during those three days.

Mr. Beatty: Now, as I understand it, the previous Subcommittee report which was concurred in by the full Committee is binding on this Committee. What majority on this Committee is required to vary the times of sitting? Is it a simple majority

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or is it unanimous consent. because my understanding from the exchange on Friday was that to vary the recommendations of the Subcommittee with regard to hours of sitting would require unanimous consent.

The Joint Chairman (Mr. Joyal): No, it is a simple majority on the proposed motion.

What happened Friday, and I am glad to provide the information, is that if there is unanimous consent around the table, well then, there is no need to go through a motion; if there is no unanimous consent, then there is a need to go through a motion procedure and then a vote with a simple majority.

However, what happened Friday, and you will remember it, is that I tried to call unanimous consent around the table, you were attending that meeting on Friday morning, and you know as well as I do that there was no unanimous consent. So that is why I have invited you to introduce a motion and you have done so very properly by introducing a motion, but that motion was not debatable beyond the 11 o’clock hour because our schedule for sitting that morning was 11 o’clock.

So what happened then is that a member called it 11 o’clock and I had to stop the debate on that motion, but if that debate had taken place earlier and honourable members had had time to make up their mind about the vote on that motion. then the Chair would have called a vote and the simple majority would have changed the sitting hours.

Mr. Beatty: Just one final question to make it absolutely crystal clear for me.

The Chair’s ruling, then, is that in any instance where the Committee unanimously concurs with the Subcommittee report, that Subcommittee report can be varied at any time by a simple majority of the Committee?

The Joint Chairman (Mr. Joyal): Yes, provided, as I mentioned, that there is a vote and provided that that vote takes place before the usual binding hours of sitting, which is 11 o’clock or 12:3O p.m. or 10 o’clock or 10:30 pm. according to what we have already decided.

Mr. Beatty: Thank you very much, Mr. Chairman.

The Joint Chairman (Mr. Joyal): So you understand, in order to change the sitting hours we have to do so within the sitting hours and we cannot go beyond the closing hours that we have already accepted on a motion to discuss the extension of the sitting hours.

Mr. Beatty: Thank you very much.

The Joint Chairman (Mr. Joyal): You are welcome.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, certainly we appreciated the wisdom you displayed on Friday morning in the proceedings before this Committee.

With respect to paragraph 4 of the report of the subcomittee stating members of the Committee shall be entitled to a question to the Minister on a clause with a supplementary question to be allowed at the discretion of the Chair, I

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understand the intent but I do not believe that particular paragraph accurately reflects what the agreement was.

My understanding, and Senator Austin and Mr. Epp can correct me if I am wrong, was that there was a clear discussion and clear agreement that in initial questioning on a clause there was no limitation of time, that when we were dealing with amendments or subamendments, that this particular provision with respect to supplementary questions was to apply and that was certainly the understanding at the steering committee.

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

Senator Austin: I believe, Mr. Chairman, that Mr. Robinson has correctly described the understanding. It certainly coincides with my understanding.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp on that very question as raised by Mr. Robinson.

Mr. Epp: Mr. Chairman, I have no further comment.

Mr. McGrath: We do not want to come between the coalition.

The Joint Chairman (Mr. Joyal): So, Mr. Robinson, if you would agree to make amendments or any change in the proposed fourth paragraph, the Chair will certainly accept your proposed changes.

Mr. Robinson: Mr. Chairman, I would move that paragraph 4, then, be changed to reflect that understanding which has been agreed to by Senator Austin and not disagreed with by Mr. Epp.

Mr. Epp: Mr. Chairman, before that comment can be made, I would not ask Mr. Robinson to put any words in my mouth, I would like to see what wording there is.

Mr. Robinson: Well, Mr. Chairman, I might just move, then, that the paragraph 4 read as follows:

Members of the Committee shall not be limited in time in their questioning of the Minister on a clause at the opening stages of the clause, but when dealing with amendments or subamendments shall be entitled to a supplementary question with a further supplementary question to be allowed at the discretion of the Chair.

That is rather awkward but that reflects the understanding.

The Joint Chairman (Mr. Joyal): Mr. Robinson, the Chair has been requested to ask you to read again the amendment so that honourable members may take note of it and be in a position to make up their minds.

Mr. Robinson: Mr. Chairman, perhaps I might attempt to put that in writing and then we can come back to it.

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

Well, I would say to the honourable member, if he can do so quickly that would allow the Chair to conclude with that aspect of our business this afternoon and go back to the substance as one honourable senator would suggest to use as a proper term, to go to the substance of our discussions on a

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clause-by-clause basis and the Chair would be grateful to you if you were able to provide us with the proper wording so that we can agree finally on that and then go on to another subject.

So I will read the proposed amendment slowly so that all honourable members might have an opportunity to understand it in detail, and the proposed change as suggested by Mr. Robinson is as follows:

Members of the Committee shall be entitled to question the Minister on a clause without time restriction, and to a supplementary question, and to a second supplementary question when dealing with any amendment or subamendment, the second question being allowed at the discretion of the Chair.

The Joint Chairman (Senator Hays): I will make an intervention.

I chaired the meeting and I did not understand it that way. I understood it that members of the Committee shall be entitled to a question and a supplementary at the discretion of the Chair. Now, that is the way I understood it as I Chaired the meeting.

Mr. Epp: At what stage, Mr. Chairman? Does it apply to all stages?

The Joint Chairman (Mr. Joyal): Honourable Jake Epp, may I ask you to repeat that?

Mr. Epp: Yes. Can I ask Senator Hays, does he apply that rule at all stages, at the subamendment stage, the amendment stage and the opening of the clause stage?

The Joint Chairman (Senator Hays): Well, as I understood it, it reads the way I understood it. that members of the Committee shall be entitled to a question of the Minister on a clause, with a supplementary question to be allowed at the discretion of the Chair. Then the members discussed it and I think that they added that it could be to a subamendment as well.

Mr. Epp: Mr. Chairman, what I believe, at least how thought there was agreement that it was to be reported to the members of the Committee is that there was agreement on the first, on Clause 1, Clause 2 and Clause 3. Where the question came in is where the clause is open to discussion, and at that stage the first three provisos do not apply. That is how I understood it.

Senator Austin: Mr. Chairman, there was no agreement as to without time limit. That is a new idea and I am sorry if I misled Mr. Robinson when I responded to his query of me, but I think Mr. Epp has it.

Mr. McGrath: I was present and I can confirm that was not my understanding either. It was very clear to me what the understanding was because it was my proposal initially that we try and restrict interventions on amendments and subamendments, and unrestricted time would totally defeat the purpose of that intervention.

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

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Mr. Robinson: Mr. Chairman, Mr. McGrath has just referred to the time when we are dealing with amendments and subamendments and I certainly agree with his comments in that respect.

However, what Senator Austin was referring to and what was referred to in the steering committee was the question of the opening discussion of the clause and questioning on the opening discussion of the clause and it certainly is my recollection that there was no suggestion at that point, Mr. McGrath. that there was to be any limitation of time and Mr. Epp, your colleague, has also indicated that that was his understanding.

Finally, I would point out that the Joint Chairman, Mr. Joyal, stated also what I believe was the understanding, that in coming to the conclusion of a particular clause, after amendments and subamendments had been disposed of, that there was also an opportunity at that point to question if desired.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I think I have stated the position of our party.

The Joint Chairman (Mr. Joyal): Honourable James, McGrath, I wonder if in accordance with the fact that you raised yourself the issue you would not propose changes to paragraph 4 that would be more in compliance with what you had in mind this morning when we met, to be sure that we reflect the consensus around the table this morning.

Mr. McGrath: Mr. Chairman, it would seem to me that the report reflects what we discussed and agreed to in the meeting because you cannot read paragraph 4 in isolation from paragraph I and 2; Paragraph 2 gives every member an opportunity to speak for three minutes on any amendment or subamendment; paragraph 4 merely covers the right of a member who has already intervened to ask the question, and he may ask only or maybe two.

I do not know where this other idea of unlimited time in terms of paragraph 4 comes into it and if would seem to me that that reflects what we agreed to at the subcommittee meeting.

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

Mr. Irwin: Mr. Chairman, I concur with Mr. McGrath. It surprises me, the words “unlimited time” because the first time I heard it is here.

If there is some confusion on paragraph 4 maybe we can have it over to the Thursday meeting, but the idea of that meeting today was to put some order and fairness to the balance of the hearing, but this would just add chaos and it was not my understanding of that particular meeting.

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

Mr. Robinson.

Mr. Robinson: Well, just to clarify this, Mr. Chairman. is the suggestion now that paragraph 4, dealing with supplementary questions to the Minister, only applies to amendments and subamendments, because if that is the case then Certainly I understand that that was the intention of the meeting, but with

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respect to Mr. McGrath, he was present, and he will recall that there was a distinction made between discussions about limitations of time when we are dealing with amendments and submendments on the one hand, and on the other hand, and Senator Austin has already confirmed this, on the other hand when we are dealing with the opening discussion on a particular clause, there was no suggestion at that point that these limitations of time would apply at that stage.

Now, if what Mr. McGrath is now saying is that paragraph 4 should be read to be only applied to amendments and subamendments. I am certainly quite prepared to accept that as the understanding.

Mr. McGrath: I move. Mr. Chairman, that the report be adopted.

The Joint Chairman (Mr. Joyal): So I have a motion from the honourable James McGrath that the report as issued be adopted.

Miss Campbell: Could I just ask one question on this report?

The Joint Chairman (Mr. Joyal): Miss Campbell.

Miss Campbell: If you read number 2, you can talk for three minutes; if you read number 4, you can only ask one question. Can you ask several questions in your three minutes?

The Joint Chairman (Mr. Joyal): I think there has never been any limitation on the part of the Chair to limit the use of time. A member can use his three minutes to merely state his views on a proposed amendment or he can use his three minutes to question the Minister or the Deputy Minister or another member around the table who happened to be the mover or who happened to be very much interested in the proposed amendment or subamendment and can provide information.

I think there has been no restriction on the use of time that each member could make of his time allocation.

Miss Campbell: Well. the only reason I say that is that one seems to block out the other, but if you wanted to look at it quite realistically I could talk for three minutes and then ask a question or come back and ask a question.

I was not party to the Subcommittee but if I was going to exercise my rights I would talk for three minutes, allow somebody else to talk for three minutes and then go back and ask a question.

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

Honourale Jake Epp.

Mr. Epp: Mr. Chairman, we are ready to accept the report. One might argue that paragraph 4 should be referring to an amendment and subamendment only, I think there was agreement on the steering committee, I think that since has been projected to this Committee and I think we should have a vote.

Mr. McGrath: We have every confidence in your ability to interpret what the steering committee has agreed to, Mr. Chairman.

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The Joint Chairman (Mr. Joyal): So do I see unanimous agreement around the table on the minutes of the Subcommittee as presented by the Chair?

Motion agreed to.

[Translation]

The Joint Chairman (Mr. Joyal): Agreed. Very well. [Text] So I would like to invite the honourable members, then, to come back on Clause 7, the amendment numbered N-1 1, Clause 7, page 4 and it is on an amendment moved by the NDP that has been divided this morning and I would like to invite Mr. Robinson to introduce the amendment.

On Clause 7—Life, liberty and security of person.

Mr. Robinson: Thank you, Mr. Chairman. I will bear in mind the newly imposed time restraints in introducing the amendment.

An hon. Member: Time is up.

Mr. Robinson: I move, further, that Clause 7 of the proposed constitution act 1980 be amended by paragraph (b), adding immediately after the proposed new Clause 8 the following. Now, presumably that wording would be changed because the proposed new Clause 8 was defeated, privacy, and this would be new Clause 8 instead of new Clause 9:

Everyone has the right to protection against arbitrary or unreasonable interference with privacy.

And renumbering all subsequent clauses accordingly.

En français, Il est proposé

Que le projet de Loi constitutionnelle de 1980 soit modifié par

b) adjonction, après le projet du nouvel article 7 de ce qui suit:

«8. Chacun a droit à la protection contre toute intervention abusive ou arbitraire dans sa vie privée.»

Mr. Chairman, there has been some discussion of a similar amendment earlier which was proposed in more comprehensive terms by the Conservative party, which was defeated. I would hope that this particular amendment in its terms as proposed by the New Democratic Party would be accepted, Mr. Chairman.

I would point to the fact that the Canadian Bar Association in their report Towards A New Canada specifically recommended that the Bill of Rights should provide that individual privacy not be sujected to unreasonable interference. In addition they stated, and if I might just quote briefly from their report to elaborate on what we mean by privacy:

Though never expressly recognized by the common law, the right to personal privacy is increasingly being given recognition. In the United States it receives constitutional protection. Of particular concern is the amount of information regarding the individual collected and stored by government. In large measure this can be dealt with by proper administrative procedures, particularly by an information commissioner or ombudsman, but a useful role can be played by the courts.

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The privacy of the individual against the state is indeed so fundamental and the dangers of governmental interference with individual privacy so great in modern society, that there must be constitutional protection.

That, Mr. Chairman, in short, is the purpose of this amendment. The right to privacy has been recognized by the community of nations as early as 1948, in the United Nations Declaration of Human Rights at Article 12 which states that no one shall be subjected to arbitrary interference with his privacy and so on. That right was recognized, as I say, by the community of nations.

That was repeated in the United Nations Covenant on Civil and Political Rights in Article 17(1), which I remind members of this Committee is binding at both the federal and provincial level.

Finally, Mr. Chairman, this particular right, this fundamenatal right to the protection from unreasonable interference with privacy was recommended by the federal government itself to the first ministers in February of 1979, at Chapter 2 of their proposals.

Once again it was recommended in July, 1980, by the federal government and I remind members of the Committee that this right to privacy and the right to protection from unreasonable interference with privacy was one of those rights that the Minister of Justice, Jean Chretien, in July of 1980 said was an essential right and formed one of the minimum rights of all Canadians which must be included in a charter of rights.

Once again, one can only ask the question what has happened to this right which was so fundamental in July of 1980 that it has now been completely disregarded in the government’s new proposals. It was contained also in the August, 1980 proposals.

Finally, Mr. Chairman, if I might just conclude on this important right by referring again to the report of the Canadian Bar Association when their recommendation that the right to privacy be included, they stated:

The right to privacy is a prerequisite to freedom of speech, expression, thought, conscience, opinion, assembly and association. It is inconsistent to guarantee these rights directly when a person’s knowledge that his privacy may be violated will indirectly inhibit the exercise of the guaranteed rights. All of these rights are prerequisites to the proper exercise of democracy, which in turn is the prerequisite to the proper operation of the principle of supremacy of Parliament.

Mr. Chairman, I conclude by saying that this right, this fundamental right which has been referred to by Mr. Justice Brandeis of the United States Supreme Court as the right to be let alone. the right most valued by civilized men and women, must be entrenched in any Charter of Rights which is to rellect those rights and freedoms which all Canadians take for granted.

Thank you, Mr. Chairman.

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

[Translation]

Mr. Lapierre.

Mr. Lapierre: I believe, Mr. Chairman, that the argument against including the right to privacy have already been set out. Mr. Robinson referred to these arguments earlier and they have not changed.

I know that Mr. Robinson has done a great deal of reading on the notion of privacy and I do not know whether he has found jurisprudence which defines the right to privacy. In our opinion, however, the notion is too vague and has not yet been clearly defined. It is not quite matured and we will have to wait a few years for legislatures and Parliament to work and legislate on this right, since it is a new legal concept. This is why we feel it would be premature to include it in the constitution.

We would instead ask members of the Committee to think about it and wait to see what happens. in a few years, we will certainly be in a position to come back with a more clearly defined concept. In this way we would not be taking any chances.

Mr. Chrétien: One more point should be added. There is now legislation before Parliament which was tabled this afternoon for second reading with the Freedom of Information legislation. So the problem of making new law is before the Canadian Parliament and will be debated in the House this week.

[Text]

The Joint Chairman (Mr. Joyal): Honourable David Crombie.

Mr. Crombie: Thank you very much, Mr. Chairman.

Mr. Chairman, I would like to move. i suppose it would be an amendment, to Mr. Robinson’s amendment, and that is that after the word “privacy”, we add “family, home, correspondence”.

That, you may recall, Mr. Chairman, was originally in our proposal in Clause 2, but you may recall that that was dealt with under Clause 2 and has not been dealt with under Clause 7. I take it that as you have aaccepted the amendment from Mr. Robinson, even though we have dealt with the matter in Clause 2, you see it as a new motion because it is in Clause 7.

Consequently, I take it that putting in the words “family, home, correspondence” is in order.

The Joint Chairman (Mr. Joyal): There are two ways to accept such a request that you are proposing to the Chair; either by requesting the consent of the main proposer to include those three words in the main motion with the consent of all the honourable members or I invite you to keep it as a subamendment when we will have dealt with the main motion, because now we are in a motion and yours is a subamendment and we cannot deal with the subamendment and a motion at the same time.

The only way to do it is to request the unanimous consent and, of course, the consent of the mover to include those three words in the main motion.

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Mr. Epp: Mr. Chairman, is the subamendment not dealt with first?

The Joint Chairman (Mr. Joyal): Yes, but it is a subamendment that is attached to an amendment.

Mr. Epp: That is right. That is why we deal with the subamendment first.

Mr. Crombie: Mr. Chairman, as I understand it, the first option you offer is for me to ask the mover if he would take my wording as part of his motion.

The Joint Chairman (Mr. Joyal): Yes.

Mr. Crombie: Failing that, I could ask for consent so that I could move it as a subamendment. If that is the form of proceedings that is adopted, would we then vote on my wording prior to Mr. Robinson’s motion?

The Joint Chairman (Mr. Joyal): Yes, of course.

Mr. Crombie: I wonder if i could then, through you, Mr. Chairman, ask Mr. Robinson if he would consider adding “family, home and correspondence” so that the clause would read:

freedom from unreasonable interference with privacy, family, home and correspondence

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

Mr. Robinson: Mr. Chairman, we supported the earlier amendment as very strong defenders of the family, the home, and the integrity of correspondence. Certainly, I would be prepared to accept that particular amendment.

Mr. Crombie: Mr. Chairman, I would like to put it in that form then, and therefore, have the whole of the motion before the Committee.

I think I probably have about one minute left in support of the proposition. I made some remarks in connection with it before, Mr. Chairman, when we were dealing with Clause 2.

It was part of the ill-fated commitment given by the Solicitor General, you may recall. At,that time, we split off the enjoyment of property, the new celebrated clause, and we voted on privacy, family, home and correspondence. That, at that time, was not supported by the Liberal party, but I think it was probably due, Mr. Chairman, to the privailing winds of change that occurred between the Thursday and the Monday.

Now, I do not have the power of a phone call at this point. Oh, that I did. Then I would ask the Prime Minister if he would so instruct his supporters on this Committee that they would see the wisdom of this particular wording, because it is the wording taken exactly from the United Nations Declaration of Human Rights.

It also appears, the same wording, in the international Covenant on Civil and Political Rights. Members, Mr. Chairman, will also find it in many, many constitutions in the Western World and throughout Asia and Africa. It is beyond me how it could be opposed.

I would hope that at least. as even some small gesture for building bridges back to some reasonable dialogue, members opposite would give consideration to including in the protection of privacy, family, home and correspondence.

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

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Epp: Mr. Chairman, if there is no one else who wants to speak to the subamendment, I want to support what Mr. Crombie has said.

It has been vital, we believe, not only to our party, but more importantly, to the Canadian people that government must be restricted in their interference with the daily lives of Canadians. So often we hear the charge made that government has become too large and that they want government off their backs, and I think this would go quite some distance to guarantee to Canadians that it is they who hold rights. rather than governments who can give or grant or take away rights.

The Joint Chairman (Mr. Joyal): Mr. Robinson, to conclude.

Mr. Robinson: Mr. Chairman, might I just ask a question for clarification on the proposed subamendment, if I may.

The proposed subamendment refers to arbitrary or unreasonable interference with, among other things, correspondence. Can I assume from this that this would encompass also the right to protection from opening of the mail by the RCMP.

Perhaps Mr. Fraser or another member might like to comment on that.

The Joint Chairman (Mr. Joyal): Honourable David Crombie.

Mr. Crombie: I gather that we are keeping in unreasonable interference as the qualifying phrase. is that correct?

Mr. Robinson: I am wondering if it is the intention of the movers of the motion that they would construe the words “unreasonable or arbitrary interference” to preclude a mail opening by the RCMP.

Mr. Fraser: I would like to make a comment on that, as former Postmaster General.

The Joint Chairman (Mr. Joyal): Honourable John Fraser.

Mr. Fraser: Mr. Chairman, I will be very brief. and I am very pleased Mr. Robinson has raised that because as Postmaster General I made it very clear that I would be opposed to any unreasonable opening of the mail. and “unreasonable” is a very wide reaching word.

I think I would have to say in frankness to Mr. Robinson that there may be extremely limited occasions and only, in my view, related to an imminent question of national security in which mail opening might be necessary in the national interest under an emergency situation, but I think that it” that is to come, that has to be the subject of a special arrangement, special legislation which takes into account the concept of national security.

So I would say, in answer to Mr. Robinson, that I certainly would interpret the use of the word “correspondence” to strengthen the privacy of the mails in Canada against unreasonable and unwarranted interference.

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

[Translation]

The honourable Senator Asselin.

[Page 67]

Senator Asselin: Thank you, Mr. Chairman.

Mr. Lapierre has said it is premature to recognize this right. Does this mean that the courts have not handed down any judgments on these issues and, that, because it is new law, we cannot include it in the charter of rights, especially since the Minister has said that there is a bill before the House of Commons that is related to the resolution that we are presenting?

Is that what you meant?

Mr. Lapierre: With your permission, Mr. Chairman . . .

Senator Asselin: I have for this clarification because it seems to me that the arguments you have given do not warrant rejecting the proposal without giving it proper consideration.

Mr. Lapierre: I am not asking you to reject without giving it proper consideration, it is just that the notion of privacy is a new concept in law . . .

Senator Asselin: What is the basic objection to putting new rights in the charter?

Mr. Lapierre: We may well do so, and if you have a clear definition and are ready to take the chance, it will show up in the results of the vote. But we would prefer to let this right mature and include it afterwards.

Senator Asselin: We could discuss the maturity of a right at some length. Does the maturity of a right mean that we cannot legislate until the courts have established solid jurisprudence or should we pass legislation first and then ask the courts to test it?

Mr. Lapierre: You are doing more here than legislating.

Mr. Chrétien: Mr. Chairman, I have a brief comment to make on this.

This was discussed last week and Mr. Robinson referred to that time to Section 17 of the International Human Rights Act. In our charter, we attack this problem by referring to unreasonable search and seizure. To protect the privacy of citizens, we have included provisions in our charter that are not found in the international charter.

Insofar as the implementation of this right is concerned, there is legislation before the House of Commons at this time. I have already described what we are doing to protect privacy, but it is not necessary to include that particular right at this time. It is being considered by the House and is posing a number of problems.

The former Postmaster General has admitted that he too had a problem with this. The government has not yet decided to what extent we can examine letters and parcels entering Canada.

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There are problems of this sort that have not yet been solved. To protect privacy. we have included provisions dealing with seizures, arrests, etcctera. carried out by the police. So privacy will be protected from that angle.

There is just no need to include the vague term proposed by Mr. Robinson.

Later, when the legislation has matured, it will always be possible to include it in the charter.

To make things clearer and simpler, we are opposed to it at this time.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister.

[Text]

Do I see that honourable members are ready for the vote? Mr. Fraser, before I call Mr. Robinson.

Mr. Fraser: Before I break the rules, am I allowed another intervention?

The Joint Chairman (Mr. Joyal): I see that you are certainly allowed another intervention, Mr. Fraser.

Mr. Fraser: Thank you, Mr. Chairman. I will make it short.

One of the things that I find difficult about Mr. Lapierre’s assertion that this is a new notion is that it just is not a new notion. You can go back to the ancient statement that an Englishman’s home is his castle, which is all wound up in the concept that unless under law and unless under reasonable conditions, the privacy of a person in their own home has got to be respected. It is not a new notion when it has appeared in the United Nations Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which we are parties in this country. The concept of privacy is not new. It is an old and longstanding concept. The whole law of trespass is based fundamentally on the concept of privacy, the right to not have the private use and enjoyment of your own property interferted with.

It is only new in the sense that it is now being put into a charter here in Canada at this particular Committee, but there is nothing new about the notion. The fact that we should assert it as a fundamental right is not something which is going to run against the conscience or the good sense of the vast majority of people.

The honourable Minister of Justice said that there are things that we have not yet resolved about mail opening. Perhaps the government he represents has not got it resolved in its own mind so far as mail opening is concerned. but the vast majority of Canadians do not want unreasonable and arbitrary interference with their correspondence, and I say “correspondence”; I am not talking about packages and other things that come in, and certainly things that cross the border, packages, goods those things are subject to investigation and examination by the customs officials, but correspondence is the transfer of thoughts from one free person to another.

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The notion that that is sacrosanct is a longstanding notion in Canada and just because some political science professors and law professors have gone back into old English history and said that it was not always honoured in ancient times is no reason to think that it has not been the tradition in this country. because it most clearly has been and the statutes from time to time, as amended. that have regulated the distribution of correspondence in this country, abided by by the Canadian Post Office, make it quite clear what we have had is an erosion of the principle by acts which. as far as I am concerned, were unwarranted, unreasonable and even worse, illegal.

The fact that this may also be treated in other ways in peripheral fashion is really no argument to not include it as a fundamental right.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Fraser.

Mr. Robinson, to conclude.

Mr. Robinson: Mr. Chairman, before concluding, I would just like to ask one supplementary question. if I may, of the Minister, and that relates to the point that I made earlier.

I would like to ask him to answer the following question with respect to his July 9, 1980 statement, Mr. Chairman.

I am referring directly now to the statement. The Minister stated:

In deciding which rights should be included in this Charter, we have selected only those which we feel reflect the central values of our society. Each of the rights we have listed is an essential ingredient for the Charter and all are rights which all Canadians should have, regardless of where they live in our country.

Mr. Minister, in the July 9, 1980 document, you included as one of those essential ingredients the right to privacy. What has changed your mind now on the importance of that as an essential ingredient and one of those which reflects the central values of our society?

Mr. Chrétien: The mechanism dealing with it will be found in the next clause dealing with unreasonable search and seizure. That is the way we found to be most logical.

Mr. Robinson: In the July document?

Mr. Chrétien: Yes; but we think it is sufficient to cope with the problem at this time. In the next clause you will find a satisfactory answer to the problem you have raised.

Mr. Robinson: To conclude, Mr. Chairman, with respect to the amendment, we would just like to deal with the concerns expressed by Mr. Lapierre who stated that because there was a lack of jurisprudence in this area of privacy and that it was not clearly defined and was not mature, I think he said, that we should not include it.

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Well, by that logic, Mr. Lapierre, through you, Mr. Chairman, why are we including the concept of fundamental justice. a concept around which there is no jurisprudence and which has not been legally defined and which has certainly not matured?

If that is your criterion, you voted to include that, Mr. Lapierre: so did I. I think it was sensible. So, those particular arguments, surely, would have applied. You say it is premature to include it in the constitution. This concept is one which was recognized before by the community of nations in 1948 in the United Nations Declaration on Human Rights. Canada became bound to accept the recognition of the principle of the protection from unreasonable interference with privacy in 1976 and in the document which Canada has tabled before the United Nations Human Rights Committee, in our commentary on Article 17, it is stated that we recognize the individual’s right to his privacy and reputation.

Well, if you do not know what it is, then how can you make a statement in your report to the United Nations Human Rights Committee that you recognize it, if your statement that you do not even know what it is has any substance whatsoever?

This is a fundamental right of all Canadians. As the Minister said in July, it is an essential right which should be recognized in a statement of fundamental rights and freedoms.

In dealing with the question of correspondence, certainly we believe that first class mail should be inviolate. Mr. Fraser has defended that right in his tenure as Postmaster General defended it, I say quite frankly, from the more aggressive moods of his colleagues at the time.

Mr. Chairman, this right is one which Canadians are entitled to, and I would hope that members opposite would recognize that—recognize the jurisprudence and vote for this amendment.

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

An hon. Member: Mr. Chairman, could we have a recorded vote?

The Joint Chairman (Mr. Joyal): Yes.

Amendment negatived: Yeas, 9; Nays, 14.

The Joint Chairman (Mr. Joyal): I would like to call the vote on Clause 7 as amended.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, just one question on Clause 7 as a whole and that relates to a concern which was expressed to us by the Canadian Advisory Council on the Status of Women and a number of other national women’s groups in this country.

Will you confirm, Mr. Minister, that, even though the change in the words from “everyone” to “every person” was not made, that it is your intent that in no way should this

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particular clause in any way affect the right of women to obtain an abortion?

Mr. Chrétien: This does not affect that situation. There are laws in the land about abortion.

Mr. Robinson: And this clause would not affect that in any way?

Mr. Chrétien: in our view, it would not.

Clause 7 as amended agreed to.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to take the next page of their amendment package. The number of the next amendment is G-9, Clause 8, page 4.

On Clause 8—Search or seizure

The Joint Chairman (Mr. Joyal): It is an amendment moved by the NDP party on Clause 8.

But before I call Mr. Robinson or Mr. Ittinuar, the honourable Jake Epp.

Mr. Epp: Thank you very much, Mr. Chairman.

I would just like to seek some direction from the Chair.

It was my understanding that, when we stood Clause 6, we would return to that clause after the completion of Clause 7. We at least on this side are ready to return to Clause 6 at this time.

The Joint Chairman (Mr. Joyal): Mr. Nystrom, may I have some indication from your party to that effect?

Mr. Nystrom: Yes. we are certainly of the same understanding and Mr. Ittinuar is ready for Clause 6.

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

The Chair was expecting an indication from honourable members of the respective parties to call back Clause 6.

On Clause 6—Rights of citizens to move.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: Mr. Chairman, before you return to Mr. Ittinuar in view of the fact that the Minister was not before the Committee last week. you will recall when we opened Clause 6 at that time I said I felt this was one clause which had not had sufficient airing, even before we got to the amendments.

While everyone on the Committee did not agree with that view there were a number of both sides that did agree with that point of view.

It would be my thinking, Mr. Chairman, if that is agreeable with the Chair and Mr. Ittinuar in whose name the amendment now stands, that before getting to the amendment and possibly be able to better judge it, whether it would not be acceptable at this time to have general questions on Clause I, because we have a number relating to Clause 1 and it is an area that we at least feel needs a fair bit of airing before we even get to the amendment.

The Joint Chairman (Mr. Joyal): You mean Clause 6.

Mr. Epp: Clause 6, I am sorry.

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The Joint Chairman (Mr. Joyal): The honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I agree essentially with the statement of Mr. Epp. The other evening, I believe it was Monday, we did suggest that we stand Clause 6 for the very reason that Mr. Epp felt that perhaps this very important mobility right was one area of the resolution which had not perhaps come under the normal discussion which had been the case with other clauses.

As I recall it, Mr. Epp had suggested that we stand it 0because he had some extensive questions to ask on Clause 6(1). Although it has not been the subject of too much discussion. looking back in the procedure, however it has been raised.

I would like to say briefly that mobility rights raises a problem that perhaps captures the imagination and concern of Canadians to a degree that perhaps many other fail to appreciate.

I think all of us would recall several years ago in the highly publicized difference of opinion between residents of Hull and residents of Ottawa and of Cornwall and Montreal on the barriers against the barriers against the principle that we should be free as Canadians to travel anywhere in order to gain employment.

As a former Minister of Labour—there are others, of course—one of the vexing problems in the past has been the contradiction between the basic principle of mobility and provincial legislation.

I can cite the Mirabel Airport project which was clearly federal in jurisdiction but was subject to much controversy with the province who felt that the hiring practices in that province should be based upon not only provincial preference but reasonable preference within the province.

It is a subject of great concern, and in all fairness to Mr. Peckford, of great concern before he gave it the type of national prominence with his concern and determination to protect the jobs of the people of Newfoundland or the jobs in Newfoundland.

I might say—and I do not want to talk very long on this-that the general concern that has been raised of course is that, on the one hand, there are people who feel as Canadians in one great country that Canadians should have a right to be able to work anywhere in this country. I suspect we have greater freedom in the European Common Market to do that; there are less barriers there.

On the other hand, there is the legitimate concern of groups, in particular in areas like the North, the Yukon. the territories, and the extremes of the country, who look on mobility as a threat to jobs and they make a very persuasive argument. though it is not one that moves me: because I think Canada is one country and this is one of the fundamental rights.

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In conclusion, one of the witnesses who did speak very much in depth to the subject was Mr. Fairweather as did other witnesses, back on the November 14 in Issue No. 5. When questioned as to his views on mobility, Mr. Fairweather categorically supported the concept of mobility, pointing out on page 5:18 that this should be one of the fundamental rights. I do not propose to read the whole section. It is very lengthy. But I would like to refer members to it. Again, Mr. Fairweather stated categorically that as Canadians mobility rights should be something that we should accept.

I leave it at that, Mr. Chairman.

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

Mr. Epp:

Mr. Epp: Mr. Chairman, I must admit that I am not quite sure what Mr. Mackasey was driving at.

I would like to ask the Minister some questions. Can he tell us how many provinces oppose mobility rights?

Mr. Chrétien: There was general opposition to it. There was general opposition.

Mr. Epp: Could you define “general” for me?

Mr. Chrétien: Ontario supported it and there might be another province Nova Scotia, of course, was the other one.

Mr. Epp: So there were about eight or nine that opposed it?

Mr. Chrétien: Yes, I think so.

Mr. Epp: Did Prince Edward Island approve of it?

Mr. Chrétien: You could ask them. You are asking me a precise question. You can ask them.

I say generally speaking it was opposed. I do not have the minutes here.

Mr. Epp: Well, I have them here. I am looking at September 10, 1980.

Mr. Chrétien: One of the problems with Prince Edward Island related to the problem we discussed yesterday, that they were preoccupied with the clause on mobility in relation to acquisition of land.

Mr. Epp: What I am saying to you, Mr. Minister—when we discuss mobility I hope you will use the same yardstick that you used on property rights. and that you will also consider the same yardstick on mobility rights because I take it as an honourable man. you would to use the same yardstick.

If you care to take a look at the minutes of September 10, you will find the objection not only of the Province of Prince Edward Island but—if you want the page, it is page 606 and it goes on from there.

I would like to ask you, Mr. Minister, that in view of all that objection—and we can ask the political question later as to how you can feel justified saying you can do it over-riding the provincial powers and on the other hand you could not.

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But I would like to ask you, Mr. Minister, how would Clause 6(1) affect External Affairs’ ability to withold or revoke passports?

Mr. Chrétien: I do not know where you are leading to with your questions.

Mr. Epp: You will find out.

Mr. Chrétien: We have one citizenship in Canada. That is all. That was the debate—whether we had 10 countries, 10 principalities or one nation.

One of the concepts of “nation” that we were having is that when you are a Canadian you have some fundamental rights which you can exercise across the land, and mobility is one of them.

At the time, 85 per cent of the people agreed. You always refer to polls and the polls on mobility was 85 per cent of Canadians were in favour.

Mr. Epp: Obviously, you are low even on that.

What I am trying to ask you, is, have you checked with External Affairs on the matter of the ability to withhold or revoke passports? How would that ability which External Affairs now uses, how might it be affected if Clause 6(1) be passed?

Mr. Chrétien: I do not know.

Mr. Epp: Thank you.

Mr. Chrétien: We have not received any representations from External Affairs, and I have no information that the mobility rights of Canadian citizens will affect his right to have a passport.

Of course, we can always use Clause 1 of the Bill of Rights to apply the reasonable test.

Mr. Epp: Would you not feel it important when that question is asked, that the government should be able to give us a legal opinion on how it might be affected, because that is one of the very strong, central purposes of External Affairs, that is the issuing and controlling of Canadian passports?

Mr. Chrétien: We do not see how that can affect the availability of passports to Canadians.

If we have to restrict the availability of passports to Canadian, there will be laws which can be passed, and the test will be the test of this clause. plus the test of Clause 1 of the Bill of Rights. The courts will decide.

I am informed that this clause. as it is, stands no chance of creating any problems with the ability to get passports, and we have not heard of any problems with the people from External Affairs.

Mr. Epp: Mr. Minister, it is not a discretionary question. You know that the Charter would supercede any regulation or legislation passed. I have not had a satisfactory answer to my question, but I would like to ask you another question.

What provincial labour laws will be affected by Clause 6? Have you had a report from the provinces on that? Do you know what effect they might have on that?

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Mr. Chrétien: We said we should not discriminate against Canadians on the basis of the origin of the province where he is living.

Mr. Epp: That is not my question, sir.

Mr. Chrétien: I do not have any report. You asked me if I have received a report on the number of laws which would be affected by the provinces. I have not received any such report to my knowledge.

Mr. Epp: How long, Mr. Minister, do you feel would the provinces need, even if one sets aside the unilateralism and the encroachment into provincial areas, how long would the provinces need to amend all their labour laws and regulations flowing therefrom? Have you had any discussions with the provinces on that question?

Mr. Chretien: They know we are aware of the problems and have been following the discussions and they know the timetable. It is up to them. if they feel their legislation is creating discrimination against Canadians in the provinces which would affect the legislation. They have to be ready

They know that we are going ahead and Parliament is about to vote.

I am informed that two provinces have specifically raised some aspects of problems, legislative problems—one is Quebec, and the other is Newfoundland.

Mr. Epp: Are you saying, Mr. Minister, that you feel the federal government in this area of provincial labour laws and regulations flowing therefrom are justified in moving into that area and forcing the provinces to conform to a regime that was not contemplated earlier?

Mr. Chrétien: In giving a Charter to Canadians, rights which would apply across the land equally to all Canadians, we know that might affect some legislation of the provincial governments.

I think in the one Canada that I believe in that such limitation should not exist; and if such legislation exists it should be amended so that Canadians will have the right of mobility available them equally.

Mr. Epp: Mr. Minister, you keep repeating that you feel there is one Canada. There is no argument around the table that there is one Canada. That is now what we are discussing. We are discussing the provincial rights to pass labour legislation which is totally within their jurisdiction to do as it relates to provincial laws and provincial regulations.

What I am asking you, Mr. Minister, is not the balkanization of the country or that we are advocating the balkanization of the country, but you are very seriously bringing into question the right of the provinces or even their perception that they are not part of a larger country.

I do not think that charge is valid.

I would like to ask you another question. There are serious concerns north of 60°, which is totally federal jurisdiction, so let us get away from the provinces for a bit; totally federal jurisdiction where your government itself through legislation such as the Northern Pipeline Agency have in fact passed lass

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which, under Clause 6, would in fact, discriminate, It would discriminate in favour of northern residents and especially, natives living north of 60°.

I have no difficulty with that in terms of the resource development which is to take place in the north, which is to take place, that residents in those areas get first call on those jobs. I think that is also why Parliament passed the legislation relating to the Northern Pipeline.

Have you had any discussion with either the government of the Northwest Territories or of the Yukon? Or the National Indian Brotherhood, or the Council of Yukon Indians, for example. or the Minister of Northern Affairs asking that Minister how present federal legislation would be affected Clause 6(2)?

Mr. Chrétien: Yes, we have had some discussion and I think some of the clauses of this pipeline legislation will have to be adjusted.

There would be the possibility on the part of territorial administrations to have affirmative action programs, but not based on the provincial status—where they are coming from. But there will be the possibility of positive, affirmative action in order to cope with some social problems; for example. in the Yukon the intent was to give preference to the natives, and the preference to the natives bill be a form of affirmative action, but not based upon the location of the province, but upon the social problem.

Mr. Epp: Mr, Minister, are you saying now that the Northern Pipeline Act, that was passed after a fair amount of lobbying and change because of the intervention, the lobbying of the original people of Canada living in the Yukon Territory, that should this charter pass, that the guarantees that were given before that legislation was passed, that those guarantees might now be put into question?

Mr. Chrétien: I say that the guarantee in terms of giving preference to native employment will remain the same, but the limitation will not be in terms of origin of the person but based on the social problems that have to be affected and cured by giving them a preference in hiring.

Mr. Epp: Have you had any representations from Senator Lucier on an amendment or possible amendment which would protect the people living north of 60°?

Mr. Chrétien: Of course we have talked a few times with Senator Lucier, he has been a very assiduous member of this Committee and is an old friend of mine and he made some points and it is part of the concept of having mobility rights for all Canadians. I have explained that affirmative action will be possible in relation to social problems that exist in one area but it cannot be based on the origin of the person seeking employment.

Mr. Epp: Mr. Minister, I find your action rather difficult to understand. On one hand, when Mr. Henderson comes before you, you move what you fondly call the Henderson amendment as it affects Prince Edward Island. Yet, when the very same

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conditions can prevail in the Yukon and the Senator of that area comes before you. obviously there is no amendment coming forward.

Now, why the double standard?

Mr. Chrétien: It is not a double standard. It is two different problems.

Mr. Epp: Mr. Minister, the question of mobility in terms of the original people, have you considered an amendment to either Clause 6(1) or to an additional subsclause whereby. while retaining the right of mobility, the right to move, that the development north of 60°, which is desired on the part of many of us, that that development, though, will be done in such a way that the people living in that area will not only have the right to participate but will also not be inundated by labour which might be highly trained, highly skilled, highly experienced, and that the people living north of 60° have the same potential but have not had the opportunities, and I suggest that your mobility clause will remove not only the ability, the chance to get those skills and experience, but in fact the opportunities that should be theirs.

Mr. Chrétien: We are aware that the development of the north should benefit the residents there and of course there is all sorts of programs to make sure that the labour force gets the proper training to gain the ability and the option of working there.

When I was Minister of Northern Affairs there were many positive affirmative programmes that led to that, and of course some of the great experiments have been, for example the Pan Arctic crews coming from the different villages, they were hired and they were competent to do the work. The hiring would be done there.

What we say is that nobody can be refused a job just because he is not a resident of that territory or that province; but of course, any entrepreneur who hired some people would take people on-site when they are available, but we do not want someone who wants to come, to say: you cannot come because you are from another part of Canada.

Mr. Epp: Mr. Minister, that is not what I am saying. What I am asking you, then, is this: through affirmative action programmes, do you feel that affirmative action programmes will give the opportunities to the residents of the North, as you have now described, that those opportunities will be there and that will not be a violation of Clause 6(2) as it now stands?

Mr. Chrétien: If it is a programme that excludes based on the origin of the person in terms of provinces. that will not be possible, However, if it is to cure problems with affirmative action, for other reasons; for example, suppose, just to give you an example that occurred in my own province, it could be that they decide for a problem in the James Bay they will hire people of the James Bay area. but it is not based on the provinces where they are born: that will apply to the people of Montreal or Ottawa, and they cannot have that type of

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affirmative action in a province where there is no discrimination based on the province of residence.

However, if there is some local problem to be resolved and there is an affirmative action to resolve the problem of that area and it is not based on the province of origin, my opinion is that those affirmative action programs will be acceptable to the courts.

Mr. Epp: Mr. Chairman, I have many more questions, I will not pursue them now and take the time of the Committee, but the last answer of the Minister would almost indicate that there would be no mobility, in fact it would balkanize it even beyond the present provincial regions.

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

Honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Chairman, the Minister may remember because he wears another hat with respect to social policy as the Minister of social policy. that the Canadian Council on Social Development was before the Committee some many weeks ago. In their submission to this Committee they had voiced great concern with respect to mobility rights, particularly as it related to the acquisition by Canadians of the social services.

Clause 6(3)(b) places certain limitations on mobility with respect to the acquisition of federal services, it says that the rights as specified, mobility rights. are subject to, and I quote,

Any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

In their submission the Canadian Council on Social Development had this to say about that section, I will read it very briefly, it is not very long and I want your comment as to whether or not you have resolved their concern.

They said specifically with respect to the limitations on mobility rights:

These clauses will have the effect of limiting mobility rights to the extent of reducing the nation to a series of sovereign states.

Now, you have just indicated, I think probably for the umpteenth time, that your great concern has always been to maintain Canada as one nation and certain fundamental rights provided for all Canadians. The Canadian Council for Social Development has indicated that you were not doing that, that in fact you are focussing, heightening and sharpening the barriers to the delivery of social services for all Canadians.

I wonder if you have been able to meet with them and resolve their specific concerns as they outline them to us in their submission to us?

[Translation]

Mr. Chrétien: Mr. Chairman. we studied this problem during the summer and we have had long discussions with the provinces. We came to the conclusion that giving an absolute mobility right in this matter could create considerable administrative problems.

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What we want in Clause 6.(3)(b), is to allow citizens who move a reasonable residence period before being eligible to certain social benefits, to do so in such a way that the necessary control and the distribution of these benefits to these citizens could be made in an appropriate manner by the provinces.

So, in this matter, if the residence criteria imposed by a province is totally unreasonable in relation to the administrative need that we were told about during the summer, then the courts will judge that this residence requirement is unreasonable, To simplify the administrative problems of the provincial governments, we have accepted to have this condition of reasonable residency before having access to social services.

Sometimes, with the mobility of population, close to retirement age or for other reasons, towards different provinces, we understand that different programs apply. For example, on Vancouver Island, the number of retired persons is a burden for the province. So, we must be satisfied that the person receiving these benefits is really a citizen of the province and is not there only for those benefits.

So, it is in that context that we propose this amendment. It is to allow better administration on the provincial level where it would be permitted to impose a reasonable residency requirement as a qualification for the receipt of social services or benefits.

[Text]

Mr. Crombie: Mr. Chairman, through you to the Minister, there are three specific programs I would like to ask you about and I will ask them briefly. I know we have some problem with time but they are the three fundamentally important social programs in this country and I want to know your view of the effect of this legislation on them.

First of all, the Canada Assistance Plan is truly the workhorse of social programs particularly dealing with those Canadians who are most in need, and indeed whose social existence is often at risk.

The Canadian Council on Social Development had this to say, given the Canada Assistance Plan’s recognition of the importance of the portability of social programs, the most important thing about CAP is its portability and its universality, their worry with CAP is that this legislation could strike down or strike at the heart of the universal aspect of the Canada Assistance Plan and therefore reduce benefits for those Canadians most in need.

Mr. Chrétien: We are not worried about it because the agreement under CAP, one of the requirements is that there should be no residence test applied to benefits because it is a shared cost program with the federal treasury, and one of the tests. we say that they cannot apply a residence test because we know for some people it is basic, as you say, the core of the social programs, the residence test there cannot apply under the present agreement that we have with the provinces and we are completely in control of it because we are paying half the cost.

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Mr. Crombie: Could you offer comment on two other programs that are not dealt with financially on a cost shared basis in the same way and therefore might have an entirely different impact, on medicare and on pensions?

Mr. Chrétien: I will ask my advisor to give you the precise answer.

Mr. Jordan: Yes, Mr. Crombie, with regard to the Medical Services Act, my information is that it does provide for a three month waiting period when you move from one province to another, but of course the province to which you have moved is also party to it and will be paying that during the period so you do have a residency requirement there.

On the hospital and services Diagnostic Services Act there is no residency requirement but you can exclude, and I think this is one of the important things that the provinces are concerned about. people such as tourists, transients and visitors from claiming the benefits.

I think one of the provinces presently is considering the prospect of establishing a dentacare program. You can imagine the problems of those people who went into that province to work but resided in the other province and being able to obtain those benefits without . . .

Mr. Crombie: But my particular concern, and I appreciate that and you have described the problem very well, but my particular concern with it is that as the Minister points out. under the cost sharing program there is an opportunity to constantly check whether or not there is any impediment to the universal aspect of it. That is not true with medicare simply because the negotiations for financing and funding of it are entirely different.

So the federal government’s ability to deal with the universal aspect of medicare is not nearly as strong, I would suggest, or do you agree, as it is with the Canada Assistance Plan?

Mr. Jordan: That the control the federal government has . . .

Mr. Crombie: That is right. Do you agree with that?

Mr. Jordan: Yes.

Mr. Crombie: Would you agree, then. that this particular section will carve in stone that inability of the federal government to control the universal aspect of Medicare?

Mr. Jordan: Yes, it would enable the provinces as the clause provides to spell out what they believe to be reasonable residency requirements. Of course, the courts would be able to look at that and say is it or is it not in the circumstances of the case.

Mr. Crombie: Am I missig something in what you just said? In terms of the ability of the federal government to control the universal aspects of medicare?

Mr. Chrétien: Today, suppose that the province were to impose what we would call, you and I, an unreasonable test on residence, there is nothing we can do unless we go back to the financial agreement and cut off payments and so on but it

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might be difficult because a lot of those things are now block funding and we have lost a lot of control over that.

In fact, if such a requirement existed today over residence, the test would be different now. The court would be able to look at whether that meets the tests that exist under provincial legislation for residents, whether it is reasonable, and suppose that they were to deny to a citizen who had lived, say, for a year in one province access to medicare; at that time the citizen, through that clause, would have the right to go in front of the court and claim that the test is unreasonable.

However, suppose that he was there only for one day, it is not the same thing, so today there is nothing we can do. The citizen has no right if there is a very strict residence test. Through this amendment the court will be able to look to see if, in the application of medicare, the province imposed on the citizen an unreasonable test.

So we are improving, but it might be that the province can be completely legitimate in saying that the residence for one day is not enough, and you have a good example of dental care; suppose that i am a resident of Hull and there is free dental care in Ontario, the people of Hull might just come into Ontario to get that service and the tax payers of Ontario would be paying. So the test of residence might be reasonable in that instance.

Mr. Crombie: Indeed, the opportunity for a citizen to have enforced the universality of Medicare will not rest any longer in his discussion with the federal government but he would have to take it to court, is that what you are saying?

Mr. Chrétien: Oh, we still have the responsibility. One of the problems, as you know, is over the years when it was a strict shared cost program and there was an accounting to the national government, but under the pressure of the governments we have transformed the financing of the governments we have transformed the financing of those programs from a shared cost to a block funding, and in doing so we have lost the right to look over the shoulders of the provinces and some argue today that when we agreed to that request of the provinces we might have put in jeopardy the universality of medicare. This I understand, but when we established medicare, if I recall, it said it is a program that we are helping, we are using our spending power to help the provinces to establish that program and when the program is well established we will turn over all the programs to the provinces with block funding. That is what we have done, but in doing that we have lost the power to look over the shoulders of the provinces to see if they are changing the intent of the program.

Now, in that, what we are doing is supposing the application of medicare in one province were to apply an unreasonable test of residence, the citizen could go in court; but if we as a national government, we still have the obligation as a national government, in our negotiations with the provinces, if in fact they have destroyed the universality of medical care, to try and reestablish that principle but it is a political problem between the provinces and us, and what we are doing here is we are

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giving some rights to the citizens if the requirement were to be unreasonable to get it crushed by the court.

Mr. Crombie: Thank you, Mr. Chairman.

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

Hon. James McGrath followed by hon. Senator Roblin.

Mr. McGrath: Mr. Chairman, I just want to pick up very briefly where my colleague, Mr. Epp, left off.

The Minister, I was intrigued when the minister said that the government would have to change the northern pipeline legislation to conform with the provisions of this section of the bill. My question to the Minister is, there are two provinces that I know of that have local hiring regulations, the Province of Newfoundland and the Province of Nova Scotia. There are other jurisdictions as well, for example, apart from the federal government itself with their hiring practices North of 60°, there are a number of municipalities that have local hiring practices.

My question to the Minister is: have you examined the local hiring practices and regulations of the Government of Newfoundland and the Government of Nova Scotia to determine whether or not they are inconsistent with the provision of Clause 6, because I think you can argue, and there were arguments from a number of witnesses, or at least one that I know of for sure. probably two, that there are certain circumstances where local hiring practices would not in fact be inconsistent with the right of free mobility. in other words, you can move where you want as long as you know that if you move to a certain area you are going to have to take your chances in terms of local people being given the first option to any jobs that may be open there.

Now, I do not have any problem with that but my colleagues, I must confess, do seem to have a problem with it.

Mr. Chrétien: We debated that problem many, many times in front of this Committee. First I would like to say that Parliament has enacted some legislation, but not Nova Scotia. They have passed legislation but they have refrained from proclaiming the legislation and they have indicated that they do not have the intention of proclaiming it.

Mr. McGrath: They do not have the intention?

Mr. Chrétien: They have not given the intention of proclaiming it today, and I do not know what they will do in the future but it is not a problem at this time that is debated in the government. They have not decided to proclaim it. They might proclaim it tomorrow or l0 years from now, but it is not a hot issue, if I can use that term, at this moment.

I think that the problem, as we say, is that there can be some affirmative action by the provinces to create some opportunities, special opportunities for a special area of the province, but it cannot be discrimination based on the province of origin. The provincial government could decide that, for example, because of a social problem, say, quite easy in Newfound-

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land, in Labrador, for example, that they will give a priority for the resident of Labrador over the resident of Newfoundland and the rest of Canada. You will have to face the political responsibility of making that problem within your province, just like it might be that there might be an affirmative action in Quebec, say in the Gaspé area, if a discrimination, if I can use the term discrimination, applies to the resident of Quebec City and Montreal and Toronto on the same basis, then that is all right. What we do not want is the notion that based on the provincial residents and this is the concept that we are rejecting, because that way you are creating a concept of different citizenship across the land and we want the same rights to apply to all Canadians.

Mr. McGrath: In other words, if I understand you, it is all right to discriminate within a province, it is all right for a government by affirmative action to say that within a province only people who are resident within the set area may be eligible for employment on a project or an industry or a development that is taking place there, as long as you do not discriminate by province. You can discriminate by region, is that what you are saying? That is how I understand it.

Mr. Chrétien: Our problem, as I tried to explain to you, is discrimination based on the provincial barriers, the concept that you are a citizen of a province in relation to a citizen across the border to the next province.

Within the province we do recognize that there is need for affirmative action and it can be done, and the provincial government will have to take the responsibility vis-à-vis its own electors, having to discriminate in terms of one as against the other.

Mr. McGrath: Let me put it to you another way. You have taken Labrador as an example and it is a very good example. The Province of Newfoundland could discriminate against people living on the island of Newfoundland but working in Labrador, but they could not discriminate against people living in the Quebec side of the boundary?

Mr. Chrétien: No. If there is a discrimination, it is for everybody outside of Labrador. Supposing someone becomes a resident of Labrador and Quebec is just joining, the discrimination will apply to the resident of St. John’s, Newfoundland, of Cornerbrook and to the citizen of Montreal. But if they go and reside there’, that is another problem. He is a resident of Labrador.

Mr. McGrath: In the case of the Ontario government, let me just put it to you another way, the Ontario government may discriminate against people from southern Ontario working in northern Ontario, but they may not discriminate against people from Quebec working in northern Ontario, is that what you are saying?

Mr. Chrétien: They can discriminate against both, but not only against the citizen of Quebec because he is a citizen of Quebec, or a citizen of Manitoba because he is a citizen of Manitoba. But if he puts a restriction on his own citizens, just like the rest of Canada, that is fine. to take his local responsibility that he wants to have an affirmative action in one area of the province.

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But the citizen of the other parts of the province, just like a citizen of the rest of Canada will be faced—we do not intervene in Parliament either. There is a right in the Charter that belongs to the citizen but not to the Parliament of Canada.

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

The hon. Senator Roblin followed by l’hon. senateur Tremblay et monsieur Tobin.

Senator Roblin: Mr. Chairman, this is a relatively quick point of interpretation that I put to the Minister.

As I read Clause 6(2)(a) on mobility rights it says, “The right to move to and take up residence in any province” and similarly in Clause 6(2)(b), “To pursue the gaining of a livelihood in any province”. Does the word “province” comprise the Northwest Territories as well? I presume it must do or else it would say so.

Mr. Chrétien: Yes. Clause 27 makes it clear, “include a reference to the Yukon Territory and the Northwest Territories”.

Senator Roblin: Thank you, that clarifies the matter.

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

Mr. Tobin: Thank you very much, Mr. Chairman.

I just wanted to comment as well on Clause 6 and many of my concerns were answered from Mr. McGrath’s questioning of the Minister. I am glad to hear Mr. McGrath indicate that his colleagues may have some problem with his position with respect to mobility rights, because it certainly encourages me to believe that all Canadians and all members of Parliament representing all three parties have no problem with the concept of Canadians having the right to take up residence and to seek employment in any province.

I wanted to make clear, and it is my understanding, and the Minister will confirm for me, that while Clause 6 guarantees one Canadian citizenship in this country in so far as the ability to live and to work or at least pursue work in any province, it does not, for example, in the case of Newfoundland or any other province prohibit provinces or jurisdictions, provincial or municipal, from seeking to put in place positive or affirmative action programs or if you want, positive discrimination on the basis of trying to make jobs available to people in an area of very high unemployment, let us say.

Mr. Chrétien: Yes, I explained earlier, Mr, Tobin, the way they can do it. It shall not be based on the province of origin of the person affected, but as I described, it is easy in your province if you say that Labrador citizens will have a priority on one project, and if that priority is not applying to the rest of the province, the same restriction will apply to the rest of Canada.

But suppose that the citizens of Canada, wherever in Canada, or even from the mainland moved to Labrador, they would qualify according to if he is a resident of the area,

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because we want to guarantee the possibility of the Canadian to move across the land.

Mr. Tobin: Mr. Minister, I feel I can safely assure the Committee that there will be very few people in Newfoundland who would support a concept whereby anybody from any other part of Canada, simply because they were from another province of Canada, would not be able to work in Newfoundland on any project simply because they were not born a Newfoundlander. That kind of a discrimination would not be supported in the province, and as a matter of fact, a great deal of discussion has gone on about it.

I can tell you that many of us, including I, myself, have relatives in Newfoundland because we have always been a very mobile population, who work in other parts of this country and we certainly would not expect a double standard to be applied and would be disappointed if anything less than is included in these mobility rights was in front of us today.

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

[Translation]

The hon. senator Tremblay.

Senator Tremblay: Thank you very much. Mr. Chairman.

I have two questions. The first one is this: Why do you use the following wording in subsection 6(2): “To move to and take up residence in any province”? Why did you say “any province” when you mean the entire country?

I think that you could just as well have said: “To move to and take up residence in any part of the country”. You introduce an ambiguity by dividing the country up into provinces for the purposes of establishing residency.

Mr. Chrétien: This reflects reality. I do not know whether there is a major problem. We recognize that there are provinces in Canada and that there is also a country. and that you can move from one province to another.

Why do we use the term? I can check, but it could be that the use of the term “country” would allow discrimination. For example, people from Manitoba could be prevented from going to Saskatchewan because they were not very well liked, or vice versa. In any case, the wording can be corrected if need be.

Senator Tremblay: It is a small point, a question of wording, but I find it curious that, in the French version, someone can move anywhere in the country, but that when it comes to taking up residence or anyone’s living, the provinces are mentioned.

Think about it, because in my opinion, at least, there is no need to mention the provinces, since the country includes the provinces by definition.

My other question is somewhat more serious. It deals with the interpretation you have given to the clause preventing discrimination on the basis of province of origin.

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You have said that a provincial law could designate a region within a province and that in the Lac St-Jean region, for example, residents from that area would have to be hired first.

How would you feel about adding “and any other resident of Canada based on proximity to Lac St-Jean”? The result of this would be that citizens of Quebec would have preference, although it would not be clearly stated, and this would conform to your interpretation.

Mr. Chretien: This would be a round-about way of getting what cannot be obtained directly. There could thus be discrimination based on distance. In your example, you have chosen the Lac St-Jean region, which both you and I know very well and which is not close to any other province. But supposing that the same concept were applied to Rouyn-Noranda. This means that people from Ontario would have preference over people from Montreal for the purposes of employment in Rouyn.

Senator Tremblay: The problem would arise in all border areas.

Mr. Chrétien: There could be a problem if there were an affirmative action program which benefitted residents of Ontario and Rouyn- Noranda, but eliminated people from Lac St-Jean because they were too far away. If you chose Lac St-Jean, however, the concept could be applied to the entire province before you would have to start thinking about people from outside. But if you are in Rouyn-Noranda or Hull, the problem is not the same.

Senator Tremblay: In other words, according to your interpretation, the clause that is supposed to protect against discrmination on the basis of the province of origin only protects regions close to a border.

Mr. Chrétien: We wanted to eliminate discrimination on the basis of province of origin. If something were limited to citizens of Ontario, of Quebec or of Newfoundland, we would object; but if there is an affirmative action program designed to solve social or economic problems, a program which discriminates within a province and benefits one region at the expense of another, residents of other provinces would not be the only ones to be discriminated against, because it would apply to people from the province as well.

It becomes quite clear if you take the case of labrador, which is physically separated from Newfoundland and is much closer to Quebec than it is to its own province. If there was an affirmative action program for residents of Labrador, it would be fine for them but would discriminate against people from Corner Brook or St. John’s, and against people from Granby, Shawinigan or Montreal.

Senator Tremblay: Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

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[Text]

Mr. Ittinuar, you wanted to put some questions to the Minister.

Mr. Ittinuar: Thank you, Mr. Chairman.

I suppose I should ask some perfunctory questions to the Minister in light of the fact that my amendment has brought this discussion about.

This amendment, as it stands, or rather Clause 6 as it stands, without our amendment, without the ICNI amendment is discriminatory and the Minister. I think, knows that very well since he has travelled extensively to the North, knows the problems up there very well, knows the people fairly well, and he often likes to talk about social problems in the North.

These problems are usually caused by an influx of workers, an influx of immigrants in the North in places like Frobisher Bay, Inuvik, but in 90 per cent of settlements in the North there are no social problems as he likes to exaggerate, but I would like to ask the Minister, does he know what Clause 6 will do to the North in general, without the amendment we are asking for?

Mr. Chrétien: I think what we are seeking, Mr. Ittinuar, is that there should be no discrimination based on the province of origin, and you make the distinction between Inuvik and Frobisher Bay and the other settlements in the North. Of course I recognize that mot of the Eskimo or Inuit villages along Rankin Inlet, Chesterfield Inlet, one of a kind, the population is stable and has been there for a long, long time and there is no great influx of people; but when a development occurs like it happened in Inuvik and Tukoyaktuk with the oil development, there was a need . . .

Mr. Ittinuar: There are problems.

Mr. Chrétien: There are problems because there was oil and gas and there was . . .

Mr. Ittinuar: And that is exactly what this clause will do.

Mr. Chrétien: But this clause will say that—if you say that there should be nobody coming because they are not residents of Tuktoyaktuk they cannot go there or based on the ethnic origin of the people because he is not an Inuit or because he is not an Indian, I do not think that we can accept that concept.

Mr. Ittinuar: I said Clause 6 is discriminatory, Mr. Chairman, because northern people, the majority of whom speak Inuktituk, 90 per cent of people in the North, north of the tree line speak Inuktituk, but they cannot enjoy the benefits of this Clause 6. They cannot move anywhere else in Canada. How can they? They do not speak English; they do not speak French. They do not have the skills to work anywhere else in Canada. They can only trap, hunt, supplement their income with carving.

They cannot enjoy the rights which will be provided to other parts of Canada, to other peoples in Canada, and what we are trying to do with our amendment is prevent problems, as the Minister has so eloquently outlined, of the type that industry would bring if allowed to indiscriminantly bring masses of people into the Northwest Territories.

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I can name places where there are problems. Yellowknife is a good example. The Yellowknife Indian are gone. There are no more Yellowknife Indians. The Dogrib, the Slavey the Cree, et cetera, have been so diluted as to be nonexistent today. They now call themselves the Dene Nation whereas in the old days they used to be distinct from each other.

Again, I ask the Minister, for instance, when he was in his tenure as Minister of Indian Affairs and Northern Development, he was partly responsible for the development at Nanasivik or Strathcona Sound in which they had hoped for— now we are talking about something else—employment for Northerners and the Minister had said at that time that Nanasivik would strive for 60 per cent employment by northern residents, whoever they were; but only less than 20 per cent of the employment capabilities or the numbers of jobs in Nanasivik have been fulfilled by northern residents.

This clause does not ensure jobs for anybody in the North. Actually, it is going to destroy the North as it exists today. It is going to destroy the language, the culture; and Mr. Irwin, on Thursday last, said something, what is the economy of the North. Well, if I had my say I would say that what they want out of the North is what we have, but by law and by the fact that Ottawa has the’ power to say, “That is our oil; that is our gas: that is our minerals; that is our gold; that is our uranium”, that is our economy.

By the way, our economy, our culture. the economy which we talk about is a subsistence economy. It is nothing that is going to infringe upon your precious resource extraction of the North. However, as residents of that area, we would like to be beneficiaries in some respects; but with the clause as it stands without our amendment that is not going to be the case.

I would like to ask the Minister, Mr. Chairman, whether he would not seriously consider our amendment more than he has because I know in-his heart he is a good Minister and that he would like to, but he has orders from higher up.

Maybe he can comment on that?

Mr. Chrétien: What we say here is to ensure the mobility of the people across the land as much as possible. We said that there was a possibility of affirmative action. It is one of the goals we have.

You talk about the mine on Strathcona Sound next to the village Arctic Bay. We were trying, and have tried, to develop the potential of a workforce from Arctic Bay to go in this mine from across the land,just a few miles away.

Of course, you are telling me that you are disappointed that we have not managed to achieve 60 per cent of natives working there.

Mr. Ittinuar: Of northern residents.

Mr. Chrétien: Northern residents; but we have tried to do so. Of course, it is difficult. There would be the possibility of

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affirmative action to make sure that there would be training for the residents of those areas to work in those projects.

But we cannot accept an amendment which will say that nobody but the residents can work there, especially when it relates to ethnic origin; because sometimes to develop a mine or an oil well, it is absolutely necessary at some point that some expertise should come from outside.

We are afraid that that some aspects of your amendment would deny the possibility of a lot of development in those areas, and it would not serve the proper development of the natives. Of course, the age of hunting and trapping for most of the villages has passed.

The population is much bigger than it used to be, and perhaps the harvest is less available.

Mr. Ittinuar: Well, the age of hunting and trapping has not passed, as the Minister would have us believe.

Mr. Chrétien: I am not sure I said it has passed, but in any case, intended to say that it cannot provide the income for the totality of the population in many of those villages.

Mr. Ittinuar: Unfortunately, it provides a lot of income for us.

Mr. Chrétien: I agree with you.

Mr. Ittinuar: Unfortunately, for you.

Mr. Chrétien: Oh, no. no.

Mr. Ittinuar: We say in our amendment “as are reasonably justifiable to mitigate adverse environmental and social impact”. I think you know very well what would be reasonably justifiable, or demonstrably justifiable. Your legal advisers can tell you very well what that means, and in fact, this is what Mr. Justice Berger tried to bring out a few years ago in the Mackenzie Valley. There has been no such study in the Eastern Arctic.

I do not think, for instance. that Mr. Tobin, from Newfoundland is wholly truthful when he says that all Newfoundlanders would be against the concept of mitigating these environmental and social impacts. I think he would speak more on the employment side in terms of Hibernia, and so on.

Mr. Minister, when you advocate the development of the North. what you are advocating is short term development in places where the life term of such development is usually 10 to 20 years in which there would be large influx of workers who would then leave and then what would we have? Has the Minister considered that? Could the Minister comment on that please?

Mr. Chrétien: I have tried to explain to you that this Charter is not to solve all the social problems which exist in all parts of Canada.

I have said that there is room for affirmative action which has to be developed by the government, by the territorial government, by the national government, when it is within our jurisdiction.

This is our political and social responsibility.

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But you cannot cure a social problem by enshrining a concept based upon the ethnic origin of the people, more or less. This is the difficulty we are having with that.

We have said earlier that positive affirmative action would be possible and it is our collective responsibility to develop the programs so that residents in those places can prosper.

In Strathcona Sound Mining Development, there was a proposition at that time about moving most of the population to the mining site. The decision was made; no, we should maintain Arctic Bay as an Eskimo-oriented community and not move the settlement to the other place so that the cultural aspects of that community would not be destroyed by the mining operation.

It was for the natives who wanted to work to moved into the mining, and if someday the mine closed, which does happen in mining, then they would be able to go back to their village and their village would have maintained the same characteristics as they had before.

Mr. Ittinuar: Mr. Minister, this is not a quid pro quo situation. The government had developed programs for the North in terms of development and resource extraction and so forth. The people of the north have never been asked what they thought about such development. You never asked me. He never calls me; he never calls the territorial councillors from the Northwest Territories!

A few years ago, the Inuit were herded into a settlement so they could be administered more easily by Ottawa. They were not asked whether they wanted to stay where they were before, or whether they wanted to move into the settlement. This is still happening today.

Now, Mr. Irwin on Thursday night, made many comments. He asked what does the phrase “reasonably justifiable” mean? What is the economy of the aboriginal people? What is the culture of the aboriginal people? What is the society of the aboriginal people? That is like asking me do I exist or not.

If Mr. Irwin is so antiracist, and he wants to make me a white man, then this is what this is going to do. I do not have any disrespect for white men, but I am asking them to respect me, and that is what I am asking the Minister to do.

Mr. Chrétien: But this would not achieve that.

Mr. Ittinuar: This is going to achieve that, Mr. Minister, without our amendment.

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

Mr. Robinson, followed by the honourable Senator Roblin, followed by Mr. Crombie.

Mr. Robinson: Thank you, Mr. Chairman.

I would like to say a couple of words with respect to the substance of the amendment which we are proposing; and that is that Mr. Ittinuar, my colleague, is making a very eloquent

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plea that this Committee listen to what he is saying, that the mobility rights as they stand, without our proposed amendment, could have a significant, dramatic and drastic impact upon the preservation of aboriginal culture and community in the North.

That is what Mr. Ittinuar is saying. What we are proposing, as an alternative, is that mobility rights should be subject to a reasonable justifiability test. That is all we ask, that the governement should be prepared to come before the courts and say: “This particular law, even though it appears to impinge upon the cultural survival of the Inuit people of the North, we can justify if for this particular reason”.

But, without this, Mr. Chairman, what we are being told is that the Inuit people feel threatened, they feel threatened by the development which may take place as a result of the entrenchment of these mobility rights.

Surely, if there is something we should be listening to, if there is a plea we should be listening to in this Committee, it is that these rights, which are supposed to protect minorities and should not trample upon the rights of these minorities, and we are being told that there is a threat, a very real perception that this is possible.

Now, can we not listen? Can we not listen to this plea of the Inuit people that there be some overriding jurisdiction, that the courts of this land should have an opportunity to examine carefully whether any legislation which they feel threatens their existence, their cultural survival, their economic survival, their aboriginal rights, be subjected to some scrutiny?

That is all, Mr. Chairman, this amendment asks for. It asks that the beautiful environment of the North, that the Beaufort Sea, which may be threatened by the kind of rights which are being sought to be entrenched here, not be threatened without at least some opportunity to challenge it in the courts.

So, I appeal to members opposite in particular to listen to what is being said. I appeal to the Minister to listen to what is being said, because I want to advise members of this Committee and the Minister, that we in the New Democratic Party, take the question of treaty and aboriginal rights, very, very seriously.

When it comes to assessing the final package which comes out of this Committee, we will be looking with great interest at what this government has listened to the pleas of the aboriginal people of this country.

Mr. Chairman, this is a central point to this party, and I appeal to government members in particular and to the Minister to heed the plea of the Inuit people of this country.

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

The honourable Senator Roblin.

Senator Roblin: Thank you very much, Mr. Chairman.

Let me start by saying that this amendment zeroes in on one of the most difficult and intractable problems presented to us in the course of our hearings.

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We have had ample evidence of that.

When one considers the rather sweeping character of this amendment, these problems come to light. It speaks of any laws or practices affecting any of the aboriginal peoples of Canada.

We are not just talking about people of the North, but about a great many more.

When one considers that many of these aboriginal people are in a state of transition from where they originally lived in my province from reserves to migration to cities and other places, one can understand that, without a doubt, if we adopted this clause, it is going to be fraught with great difficulty if it is to be administered justly.

I try to weigh that obvious problem against the goals that this amendment seeks to attain.

When I think of the aboriginal people in my own province, I must say that, in spite of the fact that they are dispersed through the whole of our society now—some are still in the North where the original large body of these people live—when I consider the situation in my own province of Manitoba—nothing to do with the Northwest Territories—I can see why this resolution is proposed to our assembly here this afternoon.

In Manitoba, in the north, there is not enough trapping any more; there is not enough fishing any more to support the population which has been growing in geometrical ratio in my part of the world.

We know there is a forestry industry there, and we have sought in Manitoba to make sure that there is a place for aboriginal people in the development of that forest industry. It is in their part of the province.

While we do not have strict rules in the constitutional sense, we have been able to make a place for aboriginal people and we have been able to make that place while at the same time, accommodating some non-natives as well, as is necessary in the development of that industry.

I would be loathe to be a party to a law which would make it impossible to do that kind of thing.

I am concerned about the scope of this resolution—any of the aboriginal people, any environmental or social impact activity; and I wish we could define that a little more carefully. I am comforted by the thought that it is for the the purpose of mitigating, in other words, it is not a bar to development or to activity in these areas, but the purpose is to mitigate the adverse effects against these people.

It goes on to say that such mitigation must be reasonably justifiable, so, when I think of this problem and consider my own experience in the matter, I feel some protection to these aboriginal peoples is indeed justified.

I regret that the government has not—in view of its apparent opposition to the wide sweeping character of this amendment, which I acknowledge. I regret they have not found it possible to give us some more carefully defined resolution which would eliminate some of the obvious problems they see.

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But if it comes to a choice and I have to decide which way I am going to go, I am going to go with the resolution.

I thought that I would like to take the opportunity of explaining to this Committee just why I take that course.

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

The honourable David Crombie, followed by the honourable John Fraser.

Mr. Crombie: Thank you very much, Mr. Chairman.

Much of what I wanted to say, Senator Roblin has already said.

But I have one question I would like to ask. It deals with the resolution itself. I wonder if any member of the New Democratic Party in response to the resolution, could indicate what relationship they see between the resolution and the opportunity for mitigation under Clause 15(2).

It is that part of the Charter dealing with affirmative action programs. It indicates that under Clause 16(1), equality before the law and equal protection, that clause does not preclude any law, program or activity that has as its objective the amelioration of conditions of disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.

I recognize it does not include man made disaster.

Since you are using the word “aboriginal”, it seems to me that it is possible at any rate, that that could be found under “race”, but I am not sure.

Mr. Robinson: Mr. Chairman, if I may, I think I understand Mr. Crombie’s question. It would appear that since Subclause 15(2) relates back to Clause 15(1) which, in turn, deals with the question of equality before the law and equal protection and equal benefit of the law, that in essence, Subclause 15(2) is an affirmative action plan to ensure that any programs which are conducted in an attempt to achieve the objectives in Clause 15(1) are not defeated by what would appear to be the absolute proscription in Clause 15(1).

However, there is not over-riding clause in Clause 15(1) as it now stands, so that the mobility rights clause as we read it, would still apply, and by virtue of that there is still a concern that by applying mobility rights in their very broad wording as stated in Clause 6, that there could be a real threat to the Inuit people.

Mr. Crombie: Thank you very much.

I wonder if I could ask one of the law officers of the Crown, Mr. Chairman, whether they see, as Mr, Robinson has indicated, that Clause 15(2) relates somewhat narrowly to the absolute proscription of Clause 15(1) and therefore, we would have Clause 6 over-riding Clause 15.

In short, Clause 15 offers affirmative action programs. They are concerned with affirmative action programs.

The argument is that they need this resolution because Clause 15(2) would not apply.

Mr. Jordan: Mr. Chairman, if I can answer Mr. Crombie’s

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question, we read Clause 6 as being subject to Clause 15(2). In other words, Clause 15(2) talks about any law which creates an inequality on the various grounds or the non-specified grounds but certainly the specified ones are raised in this particular situation. We feel in talking of programs, activities or laws that allow for affirmative action programs, we are talking precisely about the kind of thing that is addressed in the mobility rights where you want to create special benefits for those who have been disadvantaged on the basis of one of the grounds specified in Clause 15(1), so therefore I would say that Clause 6 will be read subject to Clause 15(2).

Now, with regard to the environmental consideration that you raised, obviously that is another consideration but in terms of a program or activity, job creation activity where you want to give special preference to persons falling under the categories of Clause 15 (2), that would be covered.

I do not know whether that answers your question.

Mr. Crombie: It goes a long way. Can I have one final question to the law officer of the Crown, Mr. Chairman?

The words used in the resolution by the New Democratic Party are community. culture, economy and society, I do not know of any other term that is any more all embracing than those four, they cover it all. Do you have any difficulties with the interpretation of—I cannot recall any other legislation, to my knowledge, which carries all of those terms in it, so I just wondered what it means to you, or does it mean anything or not mean anything to you?

I was going to say it is everything under God but I remembered the resolution from last week where we no longer recognize Him.

Mr. Chrétien: Your general statement about the totality of the problem of aboriginal people, as the term is used here, Some of the aboriginal peoples are well defined and well known. For example, the treaty Indians who have been the responsibility of the national government for a long time, we know who they are. The treaty people we know. The Inuit people we know because they have been under a federal administration for a long time. I guess that the Inuit people of Labrador are in a different position, but the Inuit people of Quebec and the Inuit people of the Northwest Territories had been under national administration for a long time. So we know who they are, it is easy.

The problem is when you use the term aboriginal people, and that is related to the problem of Senator Roblin, it is true, you go into the so-called Métis problem and all those peoples who have never had status under the law and who consider themselves natives or aboriginal people, and the complexity of

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this problem just in relation to the movement of population and so on.

Mr. Ittinuar spoke about problems of the people in the Northwest Territories under federal administration and so on, and it is our collective responsibility, but when you take the sweeping amendment that is applied to all the aboriginal peoples of all Canada with all the complexity of those problems, even there, in our discussion with them, they are studying their own position in relation to the constitution and at their request the First Ministers have agreed that it will be part of the discussion in the next round of the constitutional problem. The natives or the aboriginal people and the Canadian constitution.

So it is where the debate and where the solution will be found, and in that Clause we do not know what will be the consequences of it. I would like to please Mr. Ittinuar as much as I know all the Committee would like to do, but we have as a Committee and as a legislature to face the totality of the problem and this involves a complexity of the problem Mr. Ittinuar described, the problem that he knows well in the Arctic and in the Beaufort, that is a different problem, but when you get to the complexity of all the aboriginal peoples of Canada without making a clear definition, you could find some extremely difficult problems that will lead to all sorts of litigation and we want to do it in a reasonable fashion and that involves a lot of—in fact, one of the consequences of what we might do today could create immense problems, hot for us because most of those problems will be in provincial jurisdiction.

In the North we have to cope with it, and with our affirmative action, take the responsibility and so on, there is no problem; but when you get into all the provinces and you have to deal with that and the problem of land and the problem of land that has been cut off from the treaty land allocation and the land that had not been allocated and the land that had been expropriated or taken away without compensation, the scrip problems of the Métis people on the Prairies and so on, and apparently in some cases they can make the case that they have not been compensated so the land should still belong to them.

So you get into that very wild and very difficult problem, and just to cope with the moving argument of Mr. Ittinuar you could create a real major problem. So you might as well have a rational approach to that complex problem. We say let the Natives keep studying their position in relation to the constitution, and we have in the amendment a proposed recognition of the concept of aboriginal rights, recognition of the treaty rights in the other clause. There is the so-called amendment by Senator Austin that is being discussed at this time.

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That is all right. We want to deal that way, but to accept a very. sweeping statement like that just because we are impressed by the argument of Mr. Ittinuar and not reflecting very seriously on all the consequences, I do not think—we might create expectations that later on will be devastated by the many confrontations that could lead to between the different administrations and the different type of problems. So I urge the Committee that it is not out of joy that I cannot this amendment, but I have as a minister the responsibility to reflect on all the consequences of what we might accept.

The Joint Chairman (Mr. Joyal): Honourable John Fraser. Mr. Fraser: Thank you, Mr. Chairman.

I have only a minute or two and I do not think I will be able to complete my remarks before six, but what I want to point out to members of the Committee and to the Minister is this: Clause 15 is clearly aimed at affirmative action programmes for disadvantaged people, it uses that word.

Now, Mr. Minister, what this section, this proposal that has been introduced by a member of our Canadian Native community, this proposal is trying to prevent actions that will create disadvantaged people, and there is a clear distinction between what Clause 15 does and what this Clause is trying to do.

The Minister says that there will be problems. Well, there are only problems because our record for well over a hundred years has been to run away from them. Now, I say our record, I say our record as non-Indian and non-Inuit people, and we have justified things that most of us cannot in fundamental morality justify if we have to look at them.

Now, the time has come to stop putting it off. Now, I recognize that this is a broad provision and I recognize that it will be applicable to Indian people in the Province of British Columbia, and all I can say is that it is long overdue; and the words “reasonably and justifiable”, those words and those concepts are laced throughout this proposal that the government has brought in, and we have been told on all kinds of other sections that that will give a commonsense check on something that will go beyond commonsense, but I urge honourable members to consider what the section is aimed at doing. It is to try and make sure that we do not turn people into disadvantaged people and then have to have affirmative action programmes to do it, to do something for them.

I have to say, Mr. Chairman, it is six o’clock but I intend to support the proposal.

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

It being 6 o’clock the meeting is adjourned until 8 o’clock tonight.

La séance est levée jusqu’à 8 heures ce soir.

EVENING SITTING

The Joint Chairman (Mr. Joyal): Order, please. May I invite honourable members to take their seats so that we may resume consideration of the amendment as moved by Mr. Ittinuar on Clause 6 of the proposed motion or resolution for a joint address to Her Majesty the Queen Respecting the Constitution of Canada.

When we adjourned at 6 o’clock this evening, honourable members will recall that the honourable John Fraser was about to close his comments. I understand that he has not completed his intervention.

I would like now to invite the honourable John Fraser to continue.

Mr. Fraser: Mr. Chairman, I think that, as succinctly as I can, I did put forward my position, and I do not think it is necessary to enlarge upon the points I have already made.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable John Fraser.

Madame Campbell.

Miss Campbell: Thank you, Mr. Chairman.

I have a couple of questions to the Minister. They concern the amendment as it relates to Clause 6. I am wondering what do the mobility rights do for union shops, or can a company in Canada bring in cheaper labour over another province or something like that? If a company has a work force which they could bring into another area at cheaper rates, can they undercut the locality?

Mr. Chrétien: If there is a union, there are laws governing the membership of the union, in, say, that factory. A union cannot put other members there to work in their place.

Miss Campbell: My question is more related to a situation, let us say, an electrical workers union, where a term of the contract is that they must hire—and in a lot of government contracts it is stipulated that you must hire from the union first before they go outside the union.

How this affect the position?

Mr. Chrétien: The laws that exist in the province which are to determine professional qualifications of members of any profession will remain under provincial jurisdiction, What is given here is the possibility of discrimination by laws of the

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legislature or Parliament, but individual contract is another matter and you do not have to conform to provincial law.

Miss Campbell: I suppose, similarly, if you have a company which could get cheaper labour in one part of Canada and bring it into another part of Canada, provincial labour laws would apply.

Mr. Chrétien: Of course, there are provincial laws and you cannot throw people out and replace them with cheaper persons if there is a union.

Miss Campbell: But it could be without a union.

Mr. Chrétien: That is irrelevant. It does not provide the possibility of somebody using it for such a purpose. You have to conform with the laws of the province. Of course, if provincial laws permit such a thing, then this constitution is immaterial.

Miss Campbell: Could a provincial government which gives a contract to a company have a clause in that contract to the effect that they hire local residents first? Would that be offending the mobility rights?

Mr. Chrétien: As I have explained earlier, if it is based upon affirmative action for one area, it could be applied: but it does not relate to the province where the person is coming from, because that would be discrimination against this mobility clause.

Miss Campbell: But local residents would prefer to a province or area.

Mr. Chrétien: Depending upon how it is phrased, really. If it is discrimination which applied to other citizens of the province, that would probably be all right; but if it is related to the residents of Nova Scotia and excluding the residents of New Brunswick, that would be against the Charter of Rights.

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

I would like to invite Mr. Ittinuar to conclude on the proposed motion.

I see that the honourable Warren Allmand would like to intervene on a question.

Mr. Allmand: Mr. Chairman, l just wanted to say a word on this amendment, if I may.

The Joint Chairman (Mr. Joyal): Well, I would have to request the unanimous consent of all honourable members. because as you are aware at this point of our study and discussion, we are on a clause-by-clause basis and we are on a vote.

Members who are invited to participate in the debate or discussion are members who are entitled to vote, and those members who are entitled to vote are those members whose name figure on the list which has been handed to our Clerk of

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the Senate and the House of Commons as provided by the Whip of both houses.

It is with great deference that I say that to you, because I know you have participated in more than 40 sessions of our meeting, and I would certainly not be saying the least by saying your contribution has been very vell taken and received by honourable members; by at this point I have to apply the rules to everyone, whatever might be the involvement. I have to get the unanimous consent for that.

The honourable Jake Epp.

Mr. Epp: Mr, Chairman, we would like to give Mr. Allmand unanimous consent. I am sure his Liberal colleagues would not want me to deny him that.

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

Mr. Robinson: Mr. Chairman, we are certainly willing to give Mr. Allmand unanimous consent as well.

The Joint Chairman (Mr. Joyal): The honourable Warren Allmand, I would like to invite you, then, to ask your questions within the same framework.

Mr. Allmand: Mr. Chairman and members of the Committee, I want to thank you.

I wish to assure you I will not abuse the time.

As you know, I am interested principally in clauses dealing with aboriginal rights and those clauses dealing with language rights. I only wish to intervene when necessary on these clauses.

I would like to bring to the attention of the Minister that what is being proposed in this amendment is very consistent with policies that he and I took, and other Ministers of Indian and Northern Affairs and our party took with respect to the protection of Inuit and Indian cultures in the North.

To give you an example, when I was Minister I followed the policy that was set previously by him and in signing agreements with Dome Petroleum in the Mackenzie Delta, part of the agreement for the exploration was that preference must be given to Inuit and other natives in that area in relation to jobs.

The reason for doing that was that we had looked at the experience in the Yukon in the Gold Rush of 1898 when lots of southerners came north and overwhelmed the people up there, ruined the land to a great extent, took the gold and left—and they left the land in a terrible state.

There are other examples as well-examples in the south of—in Great Slave where open pit mines were developed, and so on, without any consideration of the people living there; in the case of the Nanasivik Mines in the north of Baffin Island and in the case of Dome Petroleum Explorations in the Mackenzie Delta and the Beaufort Sea and I believe in the case of the

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Arvik on Little Resolute Island—we have all made provision that first preference must be given to the northerners living in that area.

So I think it is quite consistent—this amendment, or something along the lines of this amendment in particular for the North is consistent with our policy.

It is also consistent with the affirmative action provision in Clause I5, where you say there cannot be discrimination in the first part of the clause. But in the second part of the clause you bring in a program to favour disadvantaged groups that will allowed. I think this kind of amendment, since it deals with a disadvantaged group and it is to protect their cultures, their economies and their communities, it is very consistent with Clause 15 (2) and as I say, with the policy of this government over a long period of time.

Consequently, I will conclude by urging the Minister to consider seriously the substance of this amendment, and if he feels he cannot accept it in the terms in which it is presently I would ask him, if possible, if we could stand this so that he could at least accept it in terms of north of 60° where the situation is particularly sensitive and where the native peoples are still in the majority and look to that part of the country as a homeland in many respects, as French-Canadians look to Quebec, although they live in many other parts of the country.

Mr. Chrétien: I cannot disagree with you, with all the things you have said; and everything you have said can be done under the Charter as it is.

Mr. Allmand: Well, I fail to see that.

The Joint Chairman (Mr. Joyal): I would like to invite Mr. Ittinuar to conclude on the proposed motion.

Mr. Ittinuar: Thank you, Mr. Chairman. I have just a few comments before we close. I would like to place on record the explanatory note by the Inuit Committee on National Issues on the proposed amendment:

This Clause 6(3)(c) ensures that the principle of priority of contracts in employment for northern residents will not be inconsistent with mobility rights applying generally in southern Canada.

We have debated that earlier. It will enable governments to regulate northern immigration to balance local economic and social conditions which might otherwise be disrupted by sudden large influxes of migrant workers.

This position is also held by the governments of the Yukon and the Northwest Territories.

What we are saying, Mr. Chairman, is that while we do not restrict individuals from coming to the North out of their own interests, in fact we welcome them, this clause, as it stands without that amendment would allow indiscriminate development in the north whereby large influxes of people would disrupt society as it exists now and the indiscriminate development of resource would also disrupt a very, very sensitive—and I cannot emphasize this enough—a very delicate environment.

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As well, Clause 6 as it stands would not be enjoyed by northern people for the reasons I have already outlined. They do not enjoy the language of the English. They do not enjoy the use of the French. They have their own particular language and would not be able to enjoy the benefits of this clause, as would southern Canadians.

So the north of 60° is a very special case. It is discriminatingly ignored in the clause.

Thank you, Mr. Chairman.

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

I would like now to call the vote.

Mr. Robinson.

Mr. Robinson: I would ask for a recorded vote, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Yes, certainly.

Mr. Epp: A point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp on a point of order.

Mr. Epp: Mr. Chairman, I think we should go to the vote. But there is one point I would like to make. I spoke today with the leader of the government in the Yukon and the Yukon Territory. I asked him about this amendment and whether the Yukon government could support it, and the answer was no.

I just wanted to put that on the record. Mr. Ittinuar in giving the explanatory note said it was supported by the Yukon government. Today at noon it was not.

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

Mr. Ittinuar: On the same point of order, Mr. Chairman, the Yukon government has changed their position since they made their presentation to this Joint Committee.

As I have said before neither of the territorial governments is known for its humanist values in the North. They play the game as well as the people down here do apparently—unfortunately, Mr. Chairman.

Thank you.

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

Amendment negatived: Yeas, 3; Nays, 18.

The Joint Chairman (Mr. Joyal): I would like to go back to Clause 6.

Clause 6 agreed to.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to take the amendments relating to Clause 8, and the first amendment is that identified by the letter and figure G-9, Clause 8, page 4.

On Clause 8—Search or seizure

The Joint Chairman (Mr. Joyal): It is an amendment moved by the government party.

I would like to invite Mr. Ron Irwin to do so.

Mr. Irwin: Thank you, Mr. Chairman.

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I move that Clause 8 of the proposed constitution act, 1980 be amended by striking out lines 28 to 31 on page 4 and substituting the following:

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Il est proposé

Que l’article 8 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 30 et 31, de ce qui suit:

«les fouilles, les perquisitions ou les saisies abusives.»

Merci, monsieur le president.

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

The Chair has been informed that the New Democratic Party has a subamendment to the present amendment, and I would like to invite Mr. Robinson to move the subamendment presented by the New Democratic Party and to make the usual comments.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

Mr. Chairman, the subamendment to Clause 8 would read as follows:

I move that the proposed amendment to Clause 8 of the proposed constitution act, 1980 be amended by striking out all the words after the word “right” and substituting the following: “not to be subjected to unreasonable search or seizure of person or property”.

Et en français: il est proposé

Que le projet de modification de l’article 8 du projet de Loi constitutionnelle de 1980 soit modifié en remplaçant le mot «abusifs» par ce qui suit:

«ou les prises de corps abusives».

The Joint Chairman (Mr. Joyal): If I may suggest, Mr. Robinson, before you make the usual presentation, instead of using the words “prises de corps” that you use maybe the words “arrestations abusives”. I have some reservations as to the meaning of the words “prises de corps” in the context of “arrestations”.

If you agree, the Chair will substitute the word “arrestations” for “prises de corps”.

Mr. Robinson: Mr. Chairman, I am quite prepared to rely on your wisdom in the matter of the translation from French to English, particularly in this context.

The Joint Chairman (Mr. Joyal): Thank you.

Mr. Robinson: Mr. Chairman. the purpose of this amendment is to recognize that while the government is prepared to move on the question of the original Clause 8 which would have subjected protection to the right to be sure against unreasonable search or seizure, merely to the rule that there had to be a law justifying that search or seizure, the govern-

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ment now recognizes, in response to many, many witnesses who have appeared before us, that that was no entrenchment at all.

The purpose of our amendment is to make explicit something which I would assume was probably meant to be implicit, and that that this amendment is to apply to both person and property and not just to the person.

Indeed, it is my understanding that in the French version it is more clearly stated. I believe the French word is “perquisitions”. I believe that more explicitly refers to the concept of premises, Mr. Chairman—and property, of course.

Unfortunately, the English version of this does not make it explicit as would appear to be the case in the French version and certainly the explanatory booklet which accompanied the proposed constitutional resolution I do not seem to have with me at the moment.

In any event that booklet stated that this amendment was intended to apply to both person and property.

It is for that reason, as I say, because of the ambiguity of leaving it unclear that I wish to propose this amendment, referring explicitly to both person and property and to point out that the wording in English, as the governments amendment would propose, does not adequately make that clear. It says that everyone has the right to be secure against unreasonable search or seizure. It could be interpreted narrowly there to mean that we are strictly speaking about the person, and it is to make that explicit.

I would hope that the government side would be prepared to accept this clarifying amendment to their proposal.

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

The honourable John Fraser.

Mr. Fraser: Thank you, Mr. Chairman.

Mr. Chairman, through you my first question is directed to the Minister.

I notice that in Clause 8 the words state that everyone has the right to be secure—and this is the government’s amendment—against unreasonable search and seizure.

Mr. Chrétien: It says “and or”.

Mr. Fraser: I am sorry, I may be reading the wrong document.

Mr. Chrétien: The document you have says “and” and the amendment proposed by Mr. Irwin says “or”.

Mr. Fraser: That was my first point and I am glad that is corrected. That I think is the way it ought to read, and I am satisfied on that.

The amendment that has been proposed seems eminently sensible and I would invite the Minister to tell us why it could not meet with the accommodation of the government.

Mr. Chrétien: The accommodation of. . .

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Mr. Fraser: . . .of the government. What is the difficulty that the Minister finds in the additional words that are being proposed in the amendment to the government’s proposition?

Mr. Chrétien: It is an unnecessary addition, it is not needed. What is written there is sufficient to cover that problem and these two words added do not clarify and do not add anything, according to the drafters, so why put words for nothing there. There is enough, anyway.

I am told that it might be under certain circumstances interpreted to restrict the meaning rather than to expand that meaning.

Mr. Fraser: Just a moment, can I see the exact words that you are proposing. I do not have them in front of me.

Mr. Robinson: The exact words are “not to be subjected to unreasonable search or seizure of person or property”.

Mr. Fraser: That is the whole point. The Minister says that they add nothing. Quite frankly, they add a great deal and as it stands in Clause 8, as the government proposes it, everyone has the right to be secure against unreasonable search or seizure; seizure of what, seizure of property or seizure of person and search of property or search of person.

Mr. Tassé: Mr. Chairman, there are court decisions both in this country and in the United States to the effect taht the search or seizure that we are talking about could apply to either persons or property and in effect if we were to restrict it in the way that Mr. Robinson in his amendment proposes it might have the effect of curtailing or restricting the right that is guaranteed by Clause 8 in this way, that in the United States similar provisions have been interpreted to cover voice communication, the interception, in other words, of communication, telephone conversations, and in effect if we were to restrict it to the seizure of persons or property we might leave out the possibility that a court would in the future say that this clause does in effect extend to the interception of voice communications. So we are in effect saying that this is unnessary, on the interpretation that these words have received in Canada, that it might in effect restrict the right that we think should be guaranteed under this clause.

Mr. Fraser: I take it that you are saying that if we put in the words “of person or property” that that would mean that an illegal interception of a conversation would not be covered.

Mr. Tassé: Yes, Mr. Fraser. I am saying if we qualify search or seizure the way that Mr. Robinson is saying it would be possible for a court to say that a search or seizure that we are talking about must be one that relates to property or the seizure of a person; and the seizure or the interception of a voice communication, a telephone conversation, would not be covered by these words, and in effect the right that is contemplated here would not reach that kind of interception, and we think that this is a right that should extend to voice. communications.

I might add that in so far as persons are concerned if we are talking of the seizure of a person that right is covered by the next clause, Clause 9, where we talk about their right not to be

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arbitrarily detained or imprisoned. So far as the person is concerned and the seizure of person that would be covered by the next clause.

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

I invite the honourable Perrin Beatty followed by the honourable James McGrath.

Mr. Beatty: Mr. Chairman, I wonder whether I could ask the mover of the subamendment a couple of questions, just to get some clarification. I wonder whether Mr. Robinson might indicate when the subamendment he has moved says “everyone has the right not to be subjected to unreasonable search or seizure of person or property” he is referring here, if I understand him correctly, to seizure of property—that everyone has the right not to be subjected to unreasonable seizure of property. Is that correct?

Mr. Robinson: We are looking at the global concept of protection from unreasonable search or seizure of person or of property.

Mr. Beatty: So seizure then does refer to property here as well in your understanding.

Mr. Robinson: We would have to look at the over-all concept of the phrase “search or seizure” as it has been applied by the courts in this particular area.

Mr. Beatty: Are you not certain what it means? I am sorry, I just want to get some clarification, are you not certain that this refers to improper seizure of property?

Mr. Robinson: No, we are very concerned that the clause itself should be made explicit, that the protection of an individual from arbitrary or unreasonable search or seizure should extend both to that individual’s person and to that individual’s property, the special protection that is dealt with by the words “search or seizure”.

Mr. Beatty: Right, and by everyone do you refer simply to individuals or does this refer to associations such as corporations?

Mr. Robinson: My understanding of the word “everyone” as it has been interpreted earlier, Mr. Chairman, is that it is not restricted to natural persons but would also extend to the family farm, for example.

Mr. Beatty: And the multinational corporations as well, Mr. Robinson?

Mr. Robinson: Mr. Chairman, certainly the interpretation of the word “everyone” has not been restricted on the basis of citizenship according to the law officers of the Crown so far.

Mr. Beatty: I wonder whether I could get clarification from the officials in the Department of Justice. Mr. Robinson seems to feel that search or seizure should be looked at as a phrase where the two components were inseparable, if I understand his definition properly. Could a court not construe unreasonable seizure of property as an incident which would be intolerable by itself? In other words, could you not have either unreasonable search of property or unreasonable seizure of property from this wording?

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Mr. Jordan: Yes, Mr. Beatty, I think that is the correct interpretation. Unless you had a lawful warrant or an order from the court to go and seize the property in question, it would fall under this category.

Mr. Beatty: Mr. Chairman, I see that you are saying one last question. Could I ask Mr. Robinson the last question?

Mr. Robinson, have you checked this wording with the Government of Saskatchewan to see whether or not they approve of it and if so what effect they feel it would have, for example, on the nationalization of the potash industry?

Mr. Robinson: Mr. Chairman, naturally if we were to discuss this particular amendment with anybody it would probably be the Government of the Province of Prince Edward Island.

Mr. Beatty: Have you done that?

The Joint Chairman (Mr. Joyal): I would like to invite the Honourable James McGrath on this same subamendment.

Mr. McGrath: I just merely want to ask for some clarification because my questions in the main were covered by Mr. Beatty but I just want to ask for clarification because I am supportive of the subamendment. I wanted to ask Mr. Robinson how his amendment is consistent with the position that he and his colleagues took on Clause 7 whereby you succeeded by one means or another in getting the government to oppose our amendment which would include property rights in Clause 7. Now you are asking for protection of the property rights which you denied in the foregoing clause. That smacks to me of typical NDP inconsistency. and I think we are entitled to an explanation.

Mr. Robinson: Mr. Chairman, naturally we are dealing here with Clause 8, not with Clause 7, and we should be dealing with Clause 8 on its merits. As the law officers of the Crown have indicated this concept would in any event deal with the protection from arbitrary search or seizure of persons or property, and that point was made very clear, Mr. Chairman, in our discussions with respect to Clause 7.

It was pointed out without any doubt whatsoever by myself that there were other provisions in the proposed charter and I explicitly referred to Clause 8 which protected the family farm which Mr. Beatty and Mr. McGrath were so concerned about at that time; which protected the religious associations which they and I are so concerned about, Mr. Chairman; and it was because that protection remained in the resolution that we felt that the sweeping extension which was proposed by the Conservative Party, talking about the concept of enjoyment of property and applying whatever fundamental justice means to the enjoyment of property, might represent a massive intrusion into provincial jurisdiction.

On that basis, Mr. Chairman, in an attempt to salvage the asbestos industry in the Province of Quebec and the potash industry in the Province of Saskatchewan and to protect the very rapidly diminishing land supply in the Province of Prince

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Edward Island from incursion of foreign ownership we believe that the amendment to Clause 7 was inappropriate and we believe that the proposed amendment to Clause 8 will deal with the real concerns of the family farm owners In Canada.

Some hon. Members: Hear, hear.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath. I think, Mr. McGrath, that you have opened the door so that someone else has used your time on your behalf.

Mr. McGrath: I just merely wanted to ask Mr. Robinson how he can on the one hand expect the right to security of property and on the other hand he is denying the right to hold property. That is all, Mr. Chairman.

Mr. Robinson: Mr. Chairman, as we indicated on a number of occasions, the right to hold property is all very well for those who have means to hold property but we question singling out this particular economic right in Clause 7, recognizing that there were certain protections in the remaining part of the resolution, namely in Clause 8, which dealt with some of the concerns that had been expressed by my friends in the Conservative Party but did not take in, in the sweeping kind of manner that they sought to take in, the enjoyment of property at the same time that they did not make any suggestions whatsoever with respect to other fundamental economic or social rights in this country.

The Joint Chairman (Mr. Joyal): I do not have any other speakers on my list and I would like then. . .

Mr. Fraser: Just a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable John Fraser on a point of order.

Mr. Fraser: Very briefly, despite the inconsistencies that my friend Mr. Robinson is labouring under and trying mightly to explain, we are still going to support his amendment.

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

Mr. Epp: Mr. Chairman, I want to say to Mr. Robinson, now that he has turned himself inside out, that I want to convey to him our thanks and also indicate to him because he is now including property we will be supporting him.

The Joint Chairman (Mr. Joyal): I would like then to call the vote, Mr. Robinson.

Mr. Robinson: I would like to make reference to the document which I was searching for earlier, that is the government explanatory document called The Canadian constitution, 1980 and with respect to this particular section, this important section, it states

right to security against unlawful searches or seizures.

The Joint Chairman (Mr. Joyal): With great deference, Mr. Robinson, the Chairman has already called the vote on the motion and I think that the Chair is not really too strict by saying to you that you had plenty of opportunities by the

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questions that were put to you to state your points of view and I think that at this point the Chair should go on with the vote.

Mr. Robinson: Mr. Chairman, I am sorry, I thought there was an opportunity to conclude with a three minutes reply.

The Joint Chairman (Mr. Joyal): I think that you were the last one to speak before the Chair called the vote, if I remember well, on my list. I think that is undisputable.

So I would like then to call the vote.

An hon. Member: Recorded vote.

The Joint Chairman (Mr. Joyal): I would like to invite the Clerk of the Senate to call the vote on the subamendment as moved by the NDP Party.

Amendment negatived: yeas, 9; nays. 15.

The Joint Chairman (Mr. Joyal): So we come back to the main amendment as moved by Mr. Irwin. Mr. Robinson on the amendment.

Mr. Robinson: Just a question, Mr. Chairman, with respect to the extent of this amendment, would you comment, Mr. Minister, on the possibility that this particular amendment may severely restrict the applicability or indeed the existence of writs of assistance.

You will recall that the British Columbia Civil Liberties Association raised their concern on this particular matter, that writs of assistance are unprecedented in any other country in the Western World and that they hoped that this particular provision might restrict that.

What would be your opinion based on the discussions with the law officers of the Crown on the continuity of these draconian documents.

Mr. Jordan: Mr. Chairman, Mr. Robinson, I think Mr. Kaplan before the Committee last week addressed this question and indicated that it was our view that one would have to take a fresh look at the writs of assistance to see if they were issued and authorized in a fashion which would meet the unreasonable search and seizure criteria, and there could be certain problems there. I think he also pointed out that there was a moratorium on further issuance of any of them in the meantime. That does not address your question, I think the answer is yes, these would have to be subject to a thorough review to determine whether or not the blanket fashion in which they may be authorized now would constitute an unreasonable use of that writ as a means of gaining a search or seizure as the case may be—a search, I suppose.

Mr. Robinson: Thank you. I understand that Mr. Kaplan gave that interpretation. However, in view of certain confusions with respect to other interpretations of Mr. Kaplan. I had hoped that perhaps the Minister of Justice might clarify this matter.

Was then Mr. Jordan speaking on your behalf, Mr. Minister, on that?

Mr. Chrétien: I asked him to speak.

Mr. Robinson: On your behalf?

Mr. Chrétien: Of course.

Mr. Robinson: The final question, Mr. Chairman, on the proposed amendment deals with the matter of mail openings

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and there was some discussion earlier today about the question of mail opening, the opening of first class mail by members of the Royal Canadian Mounted Police.

Is it your view that this particular protection of the right to be secure against unreasonable search or seizure could have any effect whatsoever on the existing opening of first class mail, or possibilities of legislation which the present Solicitor General has indicated he personally supports to permit the opening of first class mail.

Mr. Chrétien: We will pass legislation on that and the court will apply its test to it. I cannot decide for the court. The problem of mail opening and the activities of the police to track down people who are criminals or are involved in espionage and what not is a different problem and that will have to meet that test.

Mr. Robinson: Have you had any interpretations or any advice from law officers of the Crown as to the likely success of a challenge to mail openings of first class mail by the RCMP if this provision is enacted.

Mr. Chrétien: I do not know if the law will be changed in terms of mail openings. If the law is changed. it will have to meet that test.

Mr. Robinson: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson. The Honourable Senator Tremblay.

[Translation]

Senator Tremblay.

Senator Tremblay: Maybe my question has already been answered. Our clerk has just told me that there has been a change in the French text, as for the number of the line that would be substituted. I thought it was by substituting two lines, 30 and 31, which would have meant that the remainder of the clause would have been left unchanged. The English amendment removed the last lines of Clause 8.

Now I have had an answer to my question.

The Joint Chairman (Mr. Joyal): You are right, Senator Tremblay, in the French version the word and the number “et 31” should be replaced by the word and the number “à 33.”

Senator Tremblay: That is right.

The Joint Chairman (Mr. Joyal): For consistency purposes, it has to be lines 30 to 33.

[Text]

Amendment agreed to.

Clause 8 as amended to.

On Clause 9—Detention or imprisonment

The Joint Chairman (Mr. Joyal): I would like then to invite the honourable members to take the amendments dealing with Clause 9, and there are two amendments dealing with Clause 9. The first one is the amendment identified as G-10, Clause 9, page 4, and it is an amendment introduced by the government party and I would like to invite Mr. Irwin to move the amendment.

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Mr. Irwin: Mr. Chairman, I am pleased to move that Clause 9 of the proposed constitution act, 1980 be amended by striking out lines 32 to 35 on page 4 and substituting the following:

Everyone has the right not to be arbitrarily detained or imprisoned.

En français. Il est proposé

Que l’article 9 du projet de Loi constitutionnelle 1980 soit modifié par substitution, aux lignes 34 à 38, page 4, de ce qui suit:

«9. Chacun a droit a la protection contre la detention ou l’emprisonnement arbitraire.»

Le coprésident (M. Joyal): Merci, monsieur Irwin.

The next amendment is in fact a subamendment to the main amendment and it is an amendment moved by the conservative Party and I would like to invite perhaps the honourable James McGrath to move the amendment.

Mr. McGrath: If you would perhaps ask Mr. Fraser.

The Joint Chairman (Mr. Joyal): Honourable John Fraser. To help the honourable members identify that amendment, it is the one with the letters CI’-5, Clause 9, page 4. It is a subamendment to the main amendment as moved by Mr. Irwin.

Honourable John Fraser.

Mr. Fraser: Well, Mr. Chairman, I will have to ask the indulgence of the Committee because I cannot find the clause.

The Joint Chairman (Mr. Joyal): Well, I think I will ask the Clerk to provide you with the package of amendments because I see that you do not have all the information needed there.

Mr. Fraser: I have it here.

The amendment as it presently is stated, Mr. Chairman, this is the government redraft:

Everyone has the right not to be arbitrarily detained or imprisoned.

And the amendment which we are proposing would add to that the words “or deported”.

Now, Mr. Chairman, we believe that that is an essential right of any person in Canada, the right to not be arbitrarily deported.

The consequences that flow from arbitrary deportation are very extreme. They can cause the separation of families. The arbitrary deportation of any person is something that goes completely contrary to our concept of justice and we would ask that the government members and the members of the New Democratic Party recognize that this ought to be ingrained in the constitution as a fundamental right of Canadians living in this country.

However, it extends, of course, beyond that because there are people who come here as landed immigrants and they ought to have the rights of Canadian citizens except where they are narrowly proscribed upon waiting for citizenship, but certainly they ought to have the right not to be arbitrarily

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deported, and if we consider the plain meaning of the word “arbitrary”, there cannot be any doubt in anybody’s mind of the evil that this particular amendment is designed to alleviate against.

So I would ask, Mr. Chairman, through you, that all honourable members of this Committee give this proper consideration and of course I would invite the Minister or others to comment, and especially I would be interested in hearing any suggestions from the Minister as to why this particular right, which is of very great importance to many of our people living in this country, ought not to be included as a fundamental right in the constitution of Canada.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable John Fraser. but before I invite the honourable Minister or any other government members to answer your questions I would request of you very respectfully that you read the exact text of the proposed amendment so that our minutes of tonight he very specific and clear in the meaning of the proposed amendment.

Mr. Fraser: Mr. Chairman, I move that the proposed amendment to Clause 9 of the proposed constitution act, 1980 be amended by striking out the words “or imprisoned” and substituting therefore the following words:

imprisoned or deported,

The French version, Mr. Chairman, is. . . motion de monsieur Fraser: il est proposé

Que le projet de modification de l’article 9 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à «contre la detention ou l’emprisonnement arbitraires», de ce qui suit:

«contre la détention, l’emprisonnement ou l’expulsion arbitraires».

The Joint Chairman (Mr. Joyal): Thank you very much, Honourable John Fraser.

Honourable Minister of Justice.

Mr. Chretien: I think the short explanation to this is that we are dealing with a charter of rights for Canadian citizens and we are mixing two things, the Canadian citizen who might be detained or imprisoned; but when you talk about a foreigner coming to Canada under a permit or for a visit. or whatever it is, the Minister of Immigration under the new Immigration Act of 1976, when he gave such permission, he can, for a reason that was explained, either that the man could come to Canada under certain circumstances for certain purposes and so on, and if he does not oblige or if he stays longer. he can deport the person because the entry into Canada is a condition of the permit, and in that way you could have people who would have a permit to come to Canada for any reason and while they are in Canada, having come for a conference or something, they say: your permit is expired. He says, he goes to the court and he can stay here and involve the Canadian system in a long and costly debate in court while he has come under certain circumstances, under an agreement, a bilateral agreement between the government and him.

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There was a lot of those cases, I have some in mind, for example not long ago there was a controversy about someone who had been admitted. the Leary case, and the opposition was very keen that this man be pushed out of Canada. He had come with permission for a short visit.

So if you enact that, you are mixing two things, This is a Charter of Rights for Canadian citizens and there is not danger that a Canadian citizen can be deported because he is protected by Clause 6(1) and the foreigner has to abide by the laws of Canada and if we have a law of immigration that gives a temporary permit to someone, he is obliged to abide by it and if he does not abide by it we should not get involved in a long process of law.

The Minister has authority to revoke or deport him, otherwise we will be losing control of the immigration policies. It is complicated, we have to set quotas and what not, and it might be used for people to come and establish themselves in Canada without following the laws that Parliament are voting.

Mr. Fraser: Well, Mr. Chairman, if I may, your argument, then, is that for people who come here under whatever particular condition, that somehow or other arbitrarily, which can mean without any cause in law, can be deported.

Now, if the Minister says that that is the way that we view justice in this country for people that are here, whether they be landed immigrants or visitors—just please let me finish, they can be arbitrarily deported, then why in Clause 8 has the Minister said that everyone, and this now refers to anyone in Canada, has the right to be secure under unreasonable search and seizure?

Now, surely there you have not said there cannot be search and seizure, there you have said that it must reasonable search and seizure; in other words, the opposite of arbitrary.

Now, surely if we are going to talk about a system of justice in our country which has got to apply to people living in the country even though they may not yet be Canadian citizens or even people that may be visitors, surely what we are striving for is a system of justice that goes against the concept of arbitrary deportation or arbitrary detention or arbitrary anything,

In other words, we are trying to find a way that says that some rule of law must apply, and if a rule of law says that you can arbitrarily, on a whim, deport somebody, that certainly has got to be a rule of law that is unreasonable and there is no justice in it. Why should somebody be deported where, for instance, they can probably explain their case? They may not be in the wrong. Well, you can say under existing statutes they are protected to a certain degree but what we are talking now about is the fundamental justice that we want to bring into our constitution, the fundamental rules with which all our laws must subscribe because the immigration act and its regulations can be changed at any time willy nilly by a parliament.

What we are trying to say her is that whatever changes you make in the immigration laws of the land, they cannot and they must not allow arbitrary deportations.

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Mr. Chretien: But the immigration law is a law of Parliament that gave the administration some powers to administer the immigration policies of Canada, and among those powers there is the power to deport people who are illegally in Canada.

If someone does not comply with the framework under which he has ‘been admitted into Canada, the conditions, the Minister has the authority to apply the law. If you think that it is arbitrary and so on, there is perhaps other procedures but what we say is this is the law that covers Canadian citizens and if we were to accept your amendment we might make it absolutely impossible to have a system of regulation in relation to immigration, and you have extended to the citizens of the world an invitation to just drop into Canada and when they have their two feet on the ground here they have acquired all sorts of rights, even if they have come against the law of the land.

It might be people who are judged by immigration officers as not acceptable because of a criminal record or because of espionage or because of other things like that. So we have an immigration law that covers those problems and what we are doing tonight, we are voting on the detention or imprisonment of anyone, but deportation is something else. Deportation is in relation to a law of Parliament.

The Joint Chairman (Mr. Joyal): Mr. Fraser. I know that you have some additional comments but I will invite you to conclude on the proposed motion. It is not your last opportunity to speak.

I have Mr. Robinson and the honourable Bryce Mackasey on my list.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I would like to first of all clarify a statement the Minister made, I am sure I did not hear him correctly. I thought I heard the Minister say that this is a Charter of Rights for the Canadian citizen. Now. the Minister surely cannot be serious when he suggests this Charter of Rights just applies to Canadian citizens.

Mr. Chrétien: In relation to deportation.

Mr. Robinson: All right, he might clarify that because the Minister said, and I wrote it down, “This is a Charter of Rights for the Canadian citizen.”

Mr. Chrétien: I am sorry, in relation to deportation.

Mr. Robinson: In relation to deportation.

Mr. Chrétien: Of course, a Canadian citizen, a landed immigrant and so on, the Charter would apply to him. That is “everyone”, that is why the word is there.

Mr. Robinson: That is quite correct, Mr. Chairman.

I want to say that we fully support this proposed amendment by the Conservative Party and I think that with respect, Mr. Minister, through you, Mr. Chairman, that the Minister is distorting the intent and the effect of the amendment.

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All it states is that a person who is in Canada cannot be arbitrarily removed from Canada without some notion of fairness. Now, surely that is not an unreasonable request to make of this government, that there has to be a hearing before a person is removed from this country. That is all this particular motion asks for, Mr. Chairman.

Mr. Lapierre says Minister’s discretion, that is exactly what we are afraid of, Mr. Chairman. that the Minister will have the discretion to pick and choose under the Immigration Act or some future immigration act because that is an ordinary statute, and that those persons who are in Canada should have the right, whether they are a citizen or not, not to be removed from Canada without the basic principles of fundamental justice applying.

That is all I understand Mr. Fraser to be suggesting, and surely it cannot be suggested that somehow this prevents the government from removing those persons who are undesirable in Canada, who have violated Canada’s immigration laws. All it states is that if there is an allegation to that effect, that that allegation must be put to the person in question, they must be given an opportunity to rebut it in the course of an unbiased tribunal, and if at the conclusion of that process it is found they have violated the law or the procedures, then the process has not been arbitrary.

So, Mr. Chairman, that is the purpose of the amendment, that as I understand it is what we are attempting to achieve here and I would hope that the Minister, having had that clarification, would be prepared to accept the amendment.

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

Honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, Mr. Robinson reminded me of what I wanted to remind everybody, that we are using the word “everyone” and not Canadian citizen. Certainly I do not think anybody conceives of a Canadian citizen being deported, so therefore we must be talking about someone else other than a Canadian citizen when we use the word “everyone”, and that narrows it down to people with legitimate landed immigrant status, who for all intents and purposes should be considered as citizens but still have to wear for three years the terminology of landed immigrant, meaning landed immigrant status.

I would want to be sure from the Minister that I would give that person the same rights as a citizen not to be deported.

The other group, of course, that does not fit into the landed immigrant status or citizen, as I recall for the short period I was Minister, in those days represented at least 250,000 people by estimate who were in the country illegally, that were not landed immigrants, who were not citizens, they were people who came in simply by crossing borders, others came in quite legitimately as visitors and simply faded into the woodwork.

The procedure, as I recall, was indeed a court case and sometimes that case would go as many as eight years under the laws of the time through a series of appeals, but inevitably, when the courts were done and the decision was that that

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alien, if you like, had to be deported, the question quite often then was to find the person again; and really, when he was found, that person was rather hastily deported, I have forgotten the number of hours under the law, I must confess, but the deportation always came after a court procedure.

The problem came between the court procedure and the implementation of the deportation order when you could not find the person or persons, and the search would go on for many months in the big cities and suddenly, for one reason or another, the person who was illegally in the country would be found. Surely we are not suggesting that they must start the procedure all over again in the courts.

I do not know in my years as a Minister where we just came along and said: you are deported; it was always preceded by a court order or court procedure, enforceable when you found the person who, for all intents and persons, was a fugitive since he or she would remain in the country illegally, and understandably illegally.

The only point, Mr, Minister, I want to get very clear from the officers is that people with legal immigrant status, those are the ones that are concerned about it, have the same rights as a citizen insofar as protection against deportation.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Bryce Mackasey.

Mr. Mackasey: I would like an answer to that.

The Joint Chairman (Mr. Joyal): I would invite the honourable Minister of Justice to give an answer to that.

Mr. Chrétien: Mr. Mackasey, would you repeat the question, because— after all, I cannot ask someone to repeat a question?

Mr. Mackasey: Mr. Minister, there are citizens and there are people with legitimate landed status, immigrants, and cannot be citizens for three years. I am asking you do they have the same protection against deportation as a Canadian citizen has?

Mr. Chrétien: Yes.

Mr. Robinson: On a point of order, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Mr. Robinson on a point of order.

Mr. Robinson: Mr. Chairman, I hesitate to interrupt here but I know the Minister would not want to inadvertently mislead the Committee. The Minister will know that the only protection which is granted in this particular area is under Clause 6(1), as I recall, and that protection, and his Deputy Minister will i am sure confirm, that that protection extends only to Canadian citizens. There is no other protection in this particular Charter of Rights that applies to landed immigrants, Mr. Mackasey, and certainly I share your concern and look forward to your amendment.

Mr. Mackasey: I still want the Minister’s version rather than yours, Mr. Robinson. No insult intended, it is the Minister I want to hear.

Mr. Chrétien: I reply that you asked me a precise question if landed immigrants in Canada have the right to, his rights are

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protected and they are protected. not under Clause 6(1) but under the immigration Act.

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

Hon. senator Asselin followed by the honourable Jake Epp.

Mr. Chretien: They can get some protection under the laws of Canada, not under this Charter.

Mr. Robinson: Not under the Charter?

Mr. Chrétien: They are protected under the laws of Canada. We cannot write into the Charter all the laws of Canada. We have laws for immigration.

Mr. Fraser: They can be repealed tomorrow, Mr. Minister,

Mr. Chrétien: Of course, that is why we have Parliamentarians. We say that there are laws for immigration in Canada and they have rights under the immigration Act, but we do not think that we should write the Immigration Act in the Canadian constitution, it is as simple as that.

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

I would like to invite the honourable Senator Asselin.

[Translation]

Senator Asselin: Mr. Chairman, I had no difficulty with the amendment proposed by my colleague, Mr. Fraser, but I would like some information on the wording of the main amendments.

I am, of course, directing my question either to the officials of the department, or to the Minister.

The word “arbitrary” does not include illegality. It is not often that the word “arbitrary” is used in the criminal code to describe things which are illegal. Arrest without warrant can be made, but in court, the defendent does not say to the judge that his client was arrested arbitrarily. He says that his client was arrested illegally under a given section of the Criminal Code which states that somebody can only be arrested with a warrant under the prevailing circumstances.

Why was the word “illegal” not included in that section? That way, it would have corresponded to the wording of our criminal code where rarely is the word “arbitrary” associated with an illegal act. The word “illegal” is used, but not very often is “arbitrary” found.

Mr. Chrétien: Our wording was somewhat similar in the first proposal, but we were criticized because it was too restrictive. Mr. Tassé can elaborate on that.

Senator Asselin: I would like to see the two words included. Both of them would be complementary.

Mr. Chrétien: Go ahead, then, Mr. Tassé.

Mr. Tassé: in the version ‘which was first presented to Parliament and to the committee, the criteria proposed was precisely the one of legality. Many witnesses appearing before the committee criticized that it was not enough, and that the wording would have to go further in order to allow the courts

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to consider the wisdom of a piece of legislation which may, perhaps, be arbitrary. An arrest made under an arbitrary law would be legal, but we were told that it was the criteria of arbitraryness which should stand.

Senator Asselin: It is arbitrary as long as it has not been denounced by the courts. As long as the laws in our statutes are not arbitrary laws, it is the practice of law which is arbitrary.

Mr. Tassé: Senator Asselin. if the criteria here were one of legality, it would be impossible for the court to consider the question of whether or not the law itself is arbitrary. That is why the “arbitrary” criteria was suggested and why the government accepted it as one which went further than the criteria of legality, the one which was first proposed and supported by many.

Senator Asselin: I would not like to see the word “arbitrary” removed, but would like to know whether the word “illegal” should not be added to make this whole notion more complete.

Mr. Tassé: Senator Asselin, it appears to me quite clear that if a person is arrested illegally, he or she would have the right to go to court and to have the detention or arrest nullified.

Senator Asselin: It would not necessarily be arbitrary. It would not have to be arbitrary, Mr. Tassé.

Mr. Tassé: According to your hypothesis, Senator Asselin, the arrest would be illegal. What I am saying is that if the arrest were illegal, it were against the law, then it would be annulled by the courts for that very reason.

Senator Asselin: It is not necessarily arbitrary.

Mr. Tassé: No.

[Text]

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

The Honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

I would like to ask the Minister or the officers of the Crown this question. Can a Canadian be deported?

Mr. Chrétien: If you have considered Clause 6(1) he cannot be deported.

Mr. Epp: I am asking you about the present time. Can a Canadian citizen be deported at this time without the Charter?

Mr. Chrétien: Not under Canadian law. He cannot be deported under Canadian law.

Mr. Epp: A Canadian citizen cannot be deported?

Mr. Chrétien: The word “deportation” relates to a non-Canadian. On the other hand. if he were put in exile—and you

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know, we might be tempted sometimes, he would be a Canadian but he would not be deported.

Mr. Epp: Can a Canadian be exiled?

Mr. Chretien: I think we could pass a law and say that “you have to go; I do not like you anymore.” But he cannot be deported, because he is a Canadian citizen.

The word “deportation” implies you are not Canadian; but if you are a Canadian, we could, I guess, pass a law exiling you somewhere.

Mr. Epp: Mr. Minister, under the clauses as drafted by the government, would a person have recourse if a law were passed as you said quite cavalierly to exile that person, would he have recourse under that clause?

Mr. Chretien: If the charter was passed he might attack the order of exile.

Mr. Epp: Surely, you are making a distinction between exile and voluntary withdrawal from the country, are you not? Surely, you are.

Mr. Tassé: Perhaps I might mention that we do not see Clause 6 as being an absolute right. I will give you an example of a situation where a citizen would, in effect lose his right to remain in the country; that would be by virtue of an order under the Extradition Act; if someone committed an offence in another country and he is sought in this country, he could be surrendered to the other country.

The same thing would apply in the case of countries belonging to the Commonwealth to which the Extradition Act does not apply, but the Fugitive Offenders Act does apply. In that situation a Canadian would not have the right to remain in the country by virtue of the offences he might have committed in another country and for which he is sought so that justice could be applied.

Mr. Epp: Mr. Tassé, I do not think that is really what we are dealing with. That is not arbitrary and under the Extradition Act there is a process to which the persoon is entitled before that extradition order can in fact be finalized.

What I am dealing with here is whether a Canadian citizen can be deported. The Minister says that he cannot be. Those of us who have done some work on the Immigration Act as well the Citizenship Act would find that is also verified there.

But I would like to know where do you, Mr. Minister, draw the distinction between a person, an alien coming into Canada, to one of our airports or highway admission points, and that person is seeking admission to the country; and that triggers a process, a special inquiry, known under the immigration Act, as distinct from a person who is a resident in Canada, in other words, legally admitted, either on a visitor’s visa or a worker’s visa, a student’s visa or a permanent resident: would you not have to distinguish when you are talking about deportation between those two classes of people?

Mr. Chretien: I do not follow your point. I said that they are covered by the Immigration Act. There is a process there. But there are some Canadians who are admitted under a permit for a specific purpose.

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You will remember in Winnipeg not too long ago the Leary Case that admitted on a permit to do something at the moment. He had to go back right after. The Minister has authority to revoke that permit and deport that person.

Mr. Epp: Excuse me, Mr. Minister, but Mr. Leary was not a Canadian nor had he ever been one. So let us keep it as the difference between Canadians and those who are coming into Canada as either alien or as permanent residents. There is a difference.

Mr. Chrétien: There is a difference.

Mr. Epp: I would like to find out from you this. Has there been in our history a deportation of Canadians for activities which were regarded as seditious, namely, at the time of the Winnipeg general strike in 1919 were Canadians deported at that time because of activities in Winnipeg, seeking the right to collective bargaining and the formation of unions?

Mr. Chrétien: Yes, but they were not deported. They were kicked out of Canada.

The word “deportation” in my mind relates to non-Canadians who are in Canada.

If we decided to send a Canadian abroad forcefully, he becomes an exile. He lives in exile. He has been kicked out of his own nation. That is why i am telling you that there cannot be a deportation of a Canadian; but a Canadian can be sent into exile.

Mr. Epp: Mr. Minister, could you ask one of your officers of the Crown whether there were those cases in 1919 in Winnipeg?

Mr. Chretien: Well, I was not there. I am bound to confess I do not know about this incident.

Mr. Jordan will reply to that.

Mr. Jordan: I do not know about the facts of 1919; but certainly in the case of Japanese Canadians the Orders in Council were brought into operation denationalizing and authorizing their deportation as well. it was deportation because they had already been denationalized.

Mr. Epp: Thank you, sir, for making my case, because that was going to be the next example I was going to draw from. Because it did happen to Japanese Canadians who, in fact, were denationalized and then deported.

I am saying that without the word “deported” the same thing could happen to Japanese Canadians now, despite the Charter, if the word “deported” is not in, or to any other Canadian, if some future government chose to denationalize.

Mr. Chretien: The legal advice I am receiving is that we could not take away the citizenship of a Canadian.

Mr. Epp: Could we denationalize Mr. Mackasey and send him to Ireland!

Mr. Chairman, I would ask the Officer of the Crown, in view of the questions to check this, and I would be willing to come back to this point before we adjourn at 10 o’clock or 10:30 p.m.

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Mr. Chrétien: Mr. Jordan will give you an explanation. He is ready to reply.

Mr. Jordan: Mr. Chairman. on the question of the citizen, we read Clause 6 to mean that a citizen cannot be deprived of his citizenship, unless one can bring it under some special circumstances which would justify it under the first clause. I find difficulty. apart from the situation we discussed the other night of the person who has dual citizenship having to make the choice by the age of 28, where there would be justification for that.

Therefore, our view is that Clause 6 ensures that the citizen can never lose his citizenship.

Mr. Epp: I am sorry to disagree with you, because what happened to the Japanese-Canadians during World War II and the denationalization of those people went through and the lack of redress that is still part of their experience and heritage today. that there is nothing in the Charter—at least you have not convinced me to this moment that Japanese-Canadians then—and it could be Canadians of another extraction sometime in the future: if we want to protect Canadians against that kind of action, we should make sure today that in fact that guarantee is there for other Canadians.

The only way you’re going to do that is to have “deportation” included as it relates to Canadians only. I appreciate the problems under the Immigration Act, but I am dealing with the rights of Canadians to remain.

Mr. Chrétien: The answer to that—the legal interpretation I am having—under Clause 6(1) if the Parliament of Canada were to pass legislation taking away the citizenship of some group of Canadians as has happened in the past, these citizens under this Charter would appeal.

An hon. Member: From where?

Mr. Chrétien: They would be citizens and they will challenge this act in front of the courts, and the court will see that their rights are protected in Clause 6(1). That is how I understand it.

But nothing can prevent a parliament from passing any law; but this Charter is protecting Canadians, Canadian citizens.

So I think they are protected and on the basis of the interpretation we put to this, we cannot see how a Canadian citizen could be deprived of his or her citizenship.

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Mr. Chairman, the Minister may be right. But my attention is directed to Clause 6(1). A moment ago I understood him to say that you cannot denationalize a citizen because he is a citizen. Does his right to remain in Canada flow from the fact that he is a citizen?

Clause 6(1) says every citizen of Canada has the right, and if he is no longer a citizen, then he does not have the right. It does not make sense.

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If you are a citizen. you do not have the right. You cannot argue that what keeps you from being a citizen is the right.

Mr. Chrétien: My argument is it would be illegal. We cannot pass such a law.

Mr. Crombie: How is that true?

Mr. Chrétien: Because if we were to pass such a law it would be against Clause 6(1).

Mr. Crombie: No, no. that is the point. If there was some other law which says that you cannot denationalize then I would accept your argument.

But your argument is that Clause 6(1) stops you from denationalizing, that cannot be true of the face of the language used, at least in English. Because in Clause 6(1) it says that every citizen has the right. You start with being a citizen and then you get the right. It does not hold you back from taking the citizenship away.

So, as soon as I denationalize you, then you no longer have the right to enter, remain or leave-you have the right to leave! But you do do not have the right to enter or remain. That is clear.

You will need to change the language, I am sure.

Mr. Chrétien: Clause 6(1) gives rights to Canadian citizens. Suppose a parliament of Canada were to pass a law and say that Jean Chrétien or David Crombie are no longer Canadians. You say I could not go into court because I am no longer a Canadian citizen.

Mr. Crombie: That is right.

Mr. Chrétien: But it will be, in my judgment, illegal to pass such an act.

Mr. Crombie: Not by Clause 6(1). By Clause 6(l) it is illegal so long as you are a citizen. to deny you entry, or to remain, or to leave; but so long as you are no longer a citizen, then those rights no longer adhere to you.

You are not making it with this one!

Mr. Chrétien: It would be legislation which would not hold in from of the courts. You are saying he would no longer be a citizen to go before the courts; but I think we are more sophisticated than that.

The Joint Chairman (Mr. Joyal): I see Mr. Robinson raising his hand. But we have already adopted an agreement to a general consensus that each member would be allowed one intervention for three minutes.

I have already recognized you, Mr. Robinson.

Mr. Robinson: One supplementary question, Mr. Chairman, if I may.

The Joint Chairman (Mr. Joyal): I will have Senator Austin, before I invite you, Mr. Robinson, for that very short supplementary question. I think you will understand why, Mr. Robinson.

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The Honourable Senator Austin.

Senator Austin: Mr. Minister, on the question we have been discussing, my understanding is that under Clause 1 these rights are guaranteed, rights to Canadian citizens are guaranteed; the only test for the removal of those rights are within the category of “subject only to such’ reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, so if I understand you correctly, if Parliament were seeking to enact a law depriving me of my citizenship, I would be entitled to ask the court to make that law meet these tests. Is that correct?

Mr. Chrétien: Yes.

Senator Austin: Thank you.

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

Mr. Robinson on a supplementary question.

Mr. Robinson: Mr. Minister, my question is this. The Minister will recall that this Committee turned down an amendment which would have stated that citizenship, once legally acquired shall be inalienable. If that right existed within the constitution, then there could be recourse to Clause 1 and the remedies section Clause 24.

But, Mr. Chairman, there is no clause in this Charter which states that once you get your citizenship it can be taken away.

I therefore ask you, Mr. Minister, through the Chairman, what is there to prevent the government of Canada from passing a simple law stating that the citizenship shall be taken away from X group.

What is there to prevent that law from passing and having a particular group stripped of their citizenship and finally exiling that group?

Mr. Chrétien: I have already explained that.

I said Parliament can pass such a law. The citizen who is deprived of his or her rights in those circumstances would then go before the courts and the tests of Clause 6(1) and Clause 1 would apply to that.

Mr. Robinson: is that your legal advice; Mr. Minister?

Mr. Chrétien: That is what Mr. Jordan and Mr. Tassé want to . . .

Mr. Robinson: I would like to hear that from the Deputy, if that is his advice to the Minister.

Mr. Tassé: I am not sure if what I am about to say will satisfy you, Mr. Robinson, but what I think might be relevant to your discussion here is that the word “citizen”, in that section or indeed in other sections of the Charter is a word that will acquire a meaning of itself now and the courts will not necessarily be bound by what Parliament has said. I would think that if there were situations where Parliament were to give the very special meaning to the word citizen, addressing itself, its legislation, to a special category of citizens, change the normal meaning of citizen so as to deprive some people of

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their rights here, I think the court would look behind what Parliament has done.

In other words, the court would not be bound by the Parliamentary, the statute definition of citizen. They would look into the ordinary meaning of citizen.

An hon. Member: They could take away citizenship.

The Joint Chairman (Mr. Joyal): Honourable John Fraser, to conclude on the proposed motion. Mr. Fraser.

Mr. Fraser: Thank you, Mr. Chairman. For the edification of all members of the Committee and the Minister I want to read the definition of “arbitrary” from Black’s Law Dictionary. Fifth Edition, and it reads as follows:

In an arbitrary manner as fixed or done capriciously or at pleasure without adequately determining principles; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely; in power; capriciously; tyrannical; despotic.

Now the point is, Mr. Chairman, through you to the Minister, apart completely from the possibility of a Canadian being wrongly deported, we have in this country on a constant basis visitors. tourists, millions of them, landed immigrants, people who come in on special permits and foreign workers, and what we are saying is that they ought not to be arbitrarily deported, that if they are to be deported there should be reason. It should not be done capriciously or at pleasure; without adequate determining principles; not founded in the nature of things; nonrational or tyrannical or despotic. That is what arbitrary means.

All we are saying is that all throughout this Charter there are provisions to protect people who are not Canadians, who are part of our community for a temporary period of time, from arbitrarily being dealt with in terms of imprisonment and other things and all we are saying is that the Charter of Rights of Canada, we do not have to worry about provincial involvement here, this is completely a federal matter, ought to enshrine in it the right that any person in this country cannot be deported arbitrarily. I remind everybody that that means tyranically, despotic, capricious, on a whim.

Surely to goodness that is not a right which is an unreasonable right to expect to be in a charter of rights, because deportation is more serious than temporary imprisonment and can cause a lot more grief to families and to individuals. The Minister says, well, we have an immigration Act and a Citizenship Act. We do have an Immigration Act but that Immigration Act can be changed at any time by the House of Commons and the Senate and unless there is something in the Charter of Rights that says that that Immigration Act cannot be changed in such a way to give a minister or a government the right to act in a tyrannical or despotic or capricious way, in other words an arbitrary way, then people living here can be deported arbitrarily, I have to submit, through you, Mr.

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Chairman, and to members of the Committee, surely to goodness if you invite us to come here and discuss what we ought to put in a constitution and especially when we are dealing with a matter that is completely federal in scope, then to deny this additional safeguard to people living here who have to trust our system of justice I find it not only unseemly, it is almost unbelievable.

Mr. Chairman, I have to ask members of this Committee, all you have to do is read the definition of arbitrary, and if you are going to deny people living in this country protection against arbitrary action then what is the use of a charter of rights? What is the measure of our civility and what is the measure of our justice.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser. I would like to call the vote on the proposed subamendment.

On a recorded vote, I would like to invite the Clerk of the Senate to call the vote in the usual manner.

Motion negatived: Yeas, 10; nays, 14.

The Joint Chairman: (Mr. Joyal): I would like to come back on the main amendment as moved by Mr. Irwin. Mr. Robinson.

Mr. Robinson: Mr. Chairman, I just have one question on the main amendment and whether the government has given any thought to the question as to whether this would have an impact on the present practice of lieutenant governors warrants and the detention in some cases for lengthy periods of time of persons in mental hospitals on lieutenant governors warrants. The Minister will be familiar with the case of Emmerson Bonar, for example.

Has there been any consideration given as to whether or not this would affect those warrants, and hopefully restrict their use.

Mr. Jordan: Mr. Chairman, yes, we have considered this. and that is another area where obviously the question of whether the arbitrariness factor enters into the procedures which are now followed.

Mr. Robinson: So you are saying that these particular warrants and their scope could be affected by this particular section.

Mr. Jordan: Yes, although we must remember that these very words are in the Canadian Bill of Rights now and there have been no cases successfully challenging that process at the moment.

Mr. Robinson: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson. I see that the honourable members are ready for the vote.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like then to call a vote on Clause 9 as amended.

Clause 9 as amended agreed to.

On Clause 10—Arrest or detention.

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to take the two amendments that deal with Clause 10. The first one is an amendment identified by

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the letters G-11, Clause 10, pages 4 and 5, it is a government amendment, and I would like in so doing to invite Mr. Irwin to move the amendment.

Mr. Irwin: Thank you, Mr. Chairman. I am pleased to move that Clause 10 of the proposed constitution act, 1980 be amended by striking out lines 38 and 39 on page 4 and lines I and 2 on page S and substituting the following:

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

Je propose

Que l’article 10 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 41 à 43, page 4, et aux lignes 1 et 2, page 5, de ce qui suit:

«a) d’être informé dans les plus brefs delais des motifs de son arrestation ou de sa détention;

b) d’avoir recours sans delai à l’assistance d’un avocat et d’être informé de ce droit;»

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin.

[Text]

I see no speaker on the amendment. Are you ready for the vote?

Mr. Robinson, you had a question?

Mr. Robinson: Yes, Mr. Chairman, I had a question with respect to the amendment in clause 10(b):

to retain and instruct counsel without delay and to be informed of that right; and

I wonder whether you could clarify whether it is felt by the government that inherent, Mr. Minister, through you Mr. Chairman, inherent in that right to retain counsel even in the absence of funds.

In other words, I am sure you would recognize that without adequate funds that this right is a hollow right. Do you envisage this possibly being interpreted by the courts as including the right to legal aid in the case of serious offences, or would that have to be spelled out explicitly?

Mr. Chrétien: No. You have the right to retain and instruct counsel. That is the right he has. How to retain and compensate the counsel is to be decided by the person involved and his lawyer and there are some programs that are shared costs where, for certain categories of citizens because he cannot afford it, he receives legal aid from the provincial administration.

So the question of compensation, the legal adviser is not a matter of right. It is a question of a private citizen dealing in society with his own problem. Legal aid is a social measure that exists in Canada and is available under the criteria that are established by the Attorneys General of the provinces.

Mr. Robinson: Mr. Chairman, I will be elaborating on my concern in respect to that particular portion of Clause 10 when

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I move an amendment on this subject, but I have another question and that is with respect to what has been called by some the right to remain silent and the right to be informed of that right.

The B.C. Civil Liberties Association, the Canadian Civil Liberties Association, and the Canadian Federation of Human Rights and Civil Liberties Association all called, Mr. Minister, through you, Mr. Chairman, for specific reference to the right to remain silent and not just from the moment from which a person is charged, but from the moment of arrest.

The Joint Chairman (Mr. Joyal): I am sorry to interrupt you. Mr. Robinson, but I see that you are now asking for questions more in relation to the amendment that honourable members will be asked to deal with after we have dealt with that first amendment, and that in my mind is very clear, and I see that the very question that you are asking is more in relation to paragraph (b) of your amendment, than on any of the sections of the proposed amendment at this point.

That is why I would like to invite you to direct your question more in relation with that amendment and not in the context of your amendment. You will have plenty of opportunities to question the Minister when your amendment will be called, and it is the next step that the Chair wants to take.

Mr. Robinson: Mr. Chairman, I am sorry, I was not clear on the fact that I could question the Minister extensively on my own amendment. There had been some concern expressed about that earlier, but if that is the understanding, that is fine.

The Joint Chairman (Mr. Joyal): It is very easy. I have already said and interpreted the time allocation of each member, in answer to a previous question by Miss Campbell, that you have five minutes to introduce your amendment and if in so doing you prefer to question the Ministers or the officers of the department or ask questions of honourable members of this Committee, because of his experience or knowledge or interest, the Chair will certainly allow it; but at this point I think we should stick to the procedure that has received general consensus and remain on the amendment as moved by Mr. Irwin.

Mr. Robinson: Thank you, Mr. Chairman.

I have one final question on the specific amendment as moved by Mr. Irwin, that is this:

Mr. Minister, perhaps you could clarify, or one of your officials, what remedy you might envisage being applied under Clasue 24 of the proposed Charter of Rights if the right to be informed of one’s right to retain and instruct counsel without delay were abrogated? What possible remedy might there be applied by the courts if that right were violated?

Mr. Chrétien: We say that the court has the discretion to apply the appropriate remedy. It is up to the court to decide, I am not a judge. We gave the rights to the person to apply to the court and the court can grant a remedy. What kind of remedy I do not know what it might be, it is up to the courts to

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decide. I do not want to speculate at this moment. We can come back on Clause 24, perhaps, but not now.

Mr. Robinson: Do you envisage that remedy including, for example, the right to have evidence which is obtained in violation of this right excluded?

Mr. Chrétien: It might be one of the remedies. It is up to the court to decide that the evidence has been gained against this, in spite of this provision in the constitution. They might decide, the judge might decide, that the evidence obtained that way is illegal.

Mr. Robinson: Thank you, Mr. Chairman.

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

I understand that honourable members are ready for the vote.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): The next amendment in relation to Clause 10 is an amendment moved by the New Democratic Party and it is the amendment identified N-13, Clause 10, page 5, and 1 would like to invite Mr. Robinson to move the amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I would move that Clause 10 be amended by:

(a) striking out line 6 on page 5 and substituting the following:

lawful;

(d) if without sufficient means to pay for counsel and if the interests of justice so require, to be provided with counsel;

And, Mr. Chairman, if I might just at this point deal with that particular subparagraph as we have done previously, to read the French version.

Il est proposé:

Que l’article 10 du projet de loi constitutionnel de 1980 soit modifié par:

a) substitution à la ligne 5, page 5, de ce qui suit:

«cas échéant, sa liberation;

d) d’avoir l’assistance d’un avocat s’il n’a pas de moyens suffisants et si l’intérêt de la justice l’exige;»

Mr. Chairman, I would so move, and in moving this particular amendment I would like to point out that if there was one amendment which was proposed to a particular section of the legal rights of the Charter, it is this: group after group appeared before this Committee asking us to recognize the principle that it is a hollow right to tell someone who has been charged with a serious criminal offence that they have the right to retain and instruct counsel, and they have the right to be informed of that right, but if they do not have any money

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then it is too bad, that is the end of the matter, because that is the effect of the Charter as it stands now.

The Minister might say: well, there are legal aid provisions in effect in the provinces and the territories, but I would point again to the Minister’s own words and the explanatory notes to this proposed Charter and what the Minister has said is this:

However, with few and limited exceptions the rights and freedoms are not constitutionally guaranteed.

These are the vital words:

What protection has been legislated yesterday can be removed or limited by another enactment tomorrow.

Now, Mr. Minister, it is not good enough to say that this legislation which guarantees to those persons charged with serious offences the right to legal aid is the only protection they should have, for as a number of groups have said to us if this right is to mean anything at all it must include the right of the poor to have the assistance of counsel.

I would point, for example, to the brief of the British Columbia Civil Liberties Association who state in the interests of simple justice money should never be the determining factor when fundamental rights are at issue. If the rich or even moderately well off have the right to counsel as soon as they are arrested or detained. this right must extend to everyone. It is really still necessary to argue such a point, they say.

Or the Canadian Civil Liberties Association. What use is the right to hire a lawyer if you do not have the money to pay him?

Finally, Mr. Chairman, quoting from the Canadian Jewish Congress:

In the Committee’s opinion it is intolerable to discriminate between rich and poor with respect to the right of an accused person to retain and instruct counsel.

Mr. Chairman, this fundamental right is recognized in the International Covenant on Federal and Political Rights in Article 14(3); it is recognized in the European Convention on Human Rights in Article 6; it is recognized very clearly as a fundamental principle and one without which, as 1 say, the right to counsel is a hollow right.

So, Mr. Chairman, I would strongly urge that the Minister accept this clause which is very much in line with the wording in the International Covenant on Civil and Political Rights, and I would like to just conclude by asking the Minister a couple of brief questions, Mr. Chairman, if I may.

The first question, Mr. Minister, is this: In view of the representations from group after group after group before this Committee, why has it been decided not to include this fundamental right in the Charter of Rights, and particularly why has it been felt that you are prepared to rely upon an ordinary statute of Parliament and provincial legislatures which can be swept away at any time?

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[Translation]

Mr. Lapierre: If I may, Mr. Chairman, the position which has been discussed is that legal aid, as you know, is basically a provincial responsibility; all Canadian provinces and territories now have legal aid, with a federal financial contribution.

The problem with entrenching your proposed amendment would be in determining the eligibility criteria which differ from province to province. Senator Asselin is no doubt aware of the criteria in Quebec, which are no doubt different from Ontario’s and those of the other provinces.

We feel that at the present time the system is well enough provided for by ordinary provincial legislation, and we do not see the need to include legal aid in the constitution.

I would even go further. Earlier, Mr. Robinson, you spoke of our international obligations, I feel that the provincial measures in existence allow us to fulfill our international obligations quite well, since we do in fact provide legal aid to disadvantaged citizens.

Fourth, in your amendment, you say “if the interests of justice so require”. In that case, we should remember that the courts have the inherent right to order that a lawyer be assigned to an accused if the interests of justice so require. So the situation is already well covered in practice, and to go any further would be to get involved in provincial jurisdiction.

[Text]

The Joint Chairman (Mr. Joyal): Mr. Robinson, I realize that you have. . .

Mr. Robinson: Just a final question, if I may, Mr. Chairman. I understand Mr. Lapierre is speaking on behalf of the government on this matter.

Mr. Lapierre, I would like to ask you this: You have stated that this is a provincial matter, largely within the provincial jurisdiction. Do you recognize that the provinces are already bound by the terms of the covenant to provide this service so this would not be imposing anything upon them which does not already exist and secondly, what remedy would you suggest to a poor accused person who is in a province that has decided, for whatever reason, financial reasons or otherwise, that they are not going to provide legal aid services? What would you suggest to that particular individual?

[Translation]

Mr. Lapierre: I think that you are putting a hypothetical case, because in practice the situation would be completely different. You have nothing to worry about. Legal aid is now part of our legal system, and there is no need for concern. Our obligations are adequately met by provincial laws, and I do not see why we should spend our time tilting at windmills!

[Text]

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

I would like to invite the honourable James McGrath followed by the honourable Senator Asselin.

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Mr. McGrath: Well, Mr. Chairman, I would like to say a few words in support of the amendment for the very simple reason. whilst I heard Mr. Lapierre. and I appreciate that once again he purports to speak for the government and I hope that he will be supported this time by the Minister of Justice, but I think it has to be said that whilst legal aid is now a part of the system in terms of all provinces have legal aid, and indeed the federal government itself is involved in legal aid, that is a meaningless service if the average Canadian does not know of it, is not able to avail himself of it, and I suggest to you that without the right to counsel, if he cannot afford counsel then it is a meaningless right.

By spelling it out in the Charter we are signalling to law enforcement agencies that everyone has this right and, sure, you maintain that the courts will decide but there is a very important time when a person is incarcerated, from the time he is arrested until he is charged, and that is when he needs legal advice and that is when I believe it is necessary for us to provide within the Charter, in accordance with the terms of Mr. Robinson’s, amendment, that not only the right to counsel but the right to provide counsel in cases where a person is unable to afford it; simply it merely brings into the system something which is already now there anyway in terms of legal aid, in terms of the courts, ability to provide counsel through legal aid, why not provide it at this step which is a very important step?

Mr. Lapierre: Well, if I may add, Mr. Chairman, I think what worries me about the admissability to legal aid, would you see the courts decide whether they can afford it, whether an individual can afford it or not? These criteria vary from jurisdiction to jurisdiction and I think it would be impractical and very difficult to leave the courts the power to enquire into financial circumstances of each case, to determine whether the criteria were fair and being fairly applied in each case.

Would you ask the court to do that?

Mr. McGrath: Well, not only would you be ensuring this as a right but you would be signalling to law enforcement agencies that whether or not a person can afford counsel should not be a factor in that person’s right to have counsel at that stage of the proceedings, and that is the important stage, I submit to you, where a person should know exactly what his rights are in terms of the Charter, his legal rights in terms of the Charter that we are addressing ourselves to here this evening.

Mr. Lapierre: Well, I think you did not take my point.

[Translation]

What I am trying to say is that you want to allow the court to decide who has sufficient means and who does not.

At the present time, the provincial authorities are dealing with this very well; it is thought that the system is working very well.

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The amendment specifies the accused has the right to counsel, if he is without sufficient means to pay for it, but something will have to decide who does not have sufficient means. Perhaps today I do not have sufficient means to pay for counsel!

[Text]

Mr. Chrétien: If I can interject, there is one aspect in the tradition in Canada. If a judge can order a lawyer to serve different accused, but now it is not applied any more because there is legal aid, but before there was legal aid, and I have been aware of cases where an accused would come in front of the judge and have no lawyer and the judge would turn to one of the lawyers and say you have to take that case, and it is the power inherent in the court and the judge will order that, and I have seen some guys who could not get out of it, who were shying away when they saw that type of development, trying to get out of the scope of the judge.

So these rights are inherent in the tradition here and now it is not used anymore because, as a matter of fact, the program of legal aid intervened and it is functioning well and I do not think that we can write every little administrative desire or goal we have into a Charter of Rights like that.

Mr. McGrath: I would like to ask the Minister . . .

The Joint Chairman (Mr. Joyal): That will be your last question.

Mr. McGrath: Do I have one question?

The Joint Chairman (Mr. Joyal): That will be your last question.

Mr. McGrath: I just wanted to ask the Minister if a person is advised of his rights under this section and if he cannot afford counsel, well then, at that point in time surely he is entitled to be advised that there is legal aid which will provide him with counsel and that seems to me to be the thrust of what Mr. Robinson’s amendment addresses.

Mr. Chrétien: In this system the guy has some rights and in terms of the administration they will say you are entitled to a lawyer.

Mr. McGrath: He says: I cannot afford it.

Mr. Chrétien: I do not know, we could perhaps give, an Attorney General can perhaps give direction to his police force to advise the person that there is a system of legal aid but we cannot put it into the Charter of Rights how administratively it should be done. We say you have the right to have a counsel, that is the main purpose of this amendment. How after that it is being implemented in the field, of course that is why we have Attorneys General in the provinces and it is not even my responsibility unless we decide to inscribe something in the Criminal Code in terms of a new procedure.

What we are giving is the right, the right to counsel, it is as a basic right, How to pay for counsel, it is either the individual or legal aid and it is not a matter of the Charter, it is a matter of operation after the person accused has been informed of his rights.

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

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[Translation]

The honourable Senator Asselin, followed by David Crombie.

Senator Asselin: Just a few words, Mr. Chairman.

I believe that the main intent of the amendment is to institutionalize the right to legal aid. I do not think we should get into the details of who has the right to legal and who does not. I do not know, but I wonder if the government. the minister, or the representatives of the government could not include in that clause the basic right to legal aid for anyone who does not have sufficient means, without getting into the administrative details of legal aid.

You are aware of what happened recently in Quebec. Defence lawyers went on strike, and for several months people innocent of the charges made against them had to wait to have a lawyer assigned to them; legal aid was refused them precisely because of that strike.

If the right to legal aid were recognized in the charter, it would mean that those accused persons could have gone before a judge to have a court decision immediately assigned them lawyers who would have pleaded their cases after which their innocence or guilt would have been recognized without delay.

It is in this context that I would consider it useful to include the concept of the right to legal aid.

The Joint Chairman (Mr. Joyal): Thank you, Senator Asselin.

The honourable David Crombie.

[Text]

Mr. Crombie: Thank you, Mr. Chairman.

I thought it might be helpful if I was able to reveal to Mr. Lapierre and to the Minister that the jurisprudence on this particular point at least has matured in the United States and I was going through my handbook, Citizens Handbook, and it says here: finally the sixth amendment to the American Bill of Rights provides the right to the represented by counsel. For many years this was interpreted to mean only that the defendant had a right to be represented by a lawyer if the defendant could afford one. The Supreme Court has held, however, that the amendment imposes an affirmative obligation on the part of the federal and state governments to provide at public expense legal counsel for those who cannot afford it in order that their cases might be adequately represented to the court.

The Supreme Court has held that this right extends even to cases involving petty offences if there is a chance that a jail sentence might result. The indigent have been held to have such a right at any critical stage of the judicatory process which the court has confined to postindictment stages and trial-like situations.

In addition, indigents have been given the right to a free copy of their trial transcript for purposes of appeal for their conviction. Congress enacted the Criminal Justice Acts of 1964 and 1970 to implement this right to counsel by establishing a federal defender system to represent those defendants who could not afford legal counsel.

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I just thought it might be worth pointing out to the Minister that, at least in the Republic to the South which has had the Bill of Rights now for something like 160-odd years, they have at least seen the point that the right to counsel without the ability to afford one indeed is a hollow promise and if you mean something by it, then I think we ought to be able to put our support in giving those who are charged before the courts the ability to pay for a lawyer.

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

I would like to invite the honourable Senator Austin followed by Mr. Irwin.

Senator Austin: Mr. Chairman, I feel a little scooped by Mr. Crombie because I was going to speak about the office of the public defender in the jurisdiction in the United States, and to praise it a bit in that system. It has been a very effective system.

It came about, and Mr. Crombie put it quite correctly, as a result of the latterday court interpretation of the sixth amendment and it was imposed by judicial interpretation on both the federal and state governments.

It is certainly not an obligation that was accepted by the legislatures of those state governments and I think it argues. and perhaps Mr. Crombie intended this, incidentally, it argues for the kind of event and process we are now engaged in, that is establishing a code not necessarily with the approval of all of the provinces.

The difficulty that I have on the principle question is that our own legal system and our system of federal provincial relations in terms of representing the judicial interests of those who fall into the legal system and do not have means. we simply have not been able to establish a common modus operandi, an operating system with the provinces. We have a Law Reform Commission that has been trying to deal with the question; my own view is that there must surely come a time, I do not believe it is at this moment, but surely there is a time in the constitutional amendment process when this particular provision must be implemented by our successors in that process.

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

Monsieur Irwin.

Mr. Irwin: Mr. Chairman, many of us around this table have had some experience with the legal aid system. especially in Ontario, and we watched an evolution of a pay or do not pay system, a court appointed system or a voluntary legal aid system to the present system which is implemented in Ontario which is one of the finest in the world.

The problem that we are having is that each thing the government, the Liberal side of this table, is saying we are dealing and we are putting in this constitution, each thing becomes entrenched as the law and not just something subject to the Vancouver formula, which is mainly opting in; but the Opposition is saying put legal aid in, make it compulsory but

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the provinces will have the right to opt in and opt out, and that is the difficulty we are having.

We must consider each thing consequently not so much as a shopping list but as something that would be entrenched in the Charter and we are not prepared to force this on provinces at this stage who are not yet ready to come forward with a legal aid system.

If my friends across the way are saying entrench this and we will drop the Vancouver formula on these particular suggestions, then that is a completely different thing, but to stand up there and say I am in favour of all good things subject to what the premiers say, it is really nothing.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin.

I would like to invite Mr. Robinson to conclude on the proposed amendment.

Mr. Robinson: Mr. Chairman, I have listened with interest both to the remarks of government members and also my friends on this side of the table and I must say that my concerns have been reinforced that it would almost be more frustrating to an accused person to have the right to be told that they have the right to counsel, but then to be frustrated and exercised in that right at some point in the future because they did not have the money to exercise that right. Better not to be informed at all.

Imagine yourself in the situation of being picked up for a serious criminal offence, being informed by the police: well, you have the right . . .

The Joint Chairman (Mr. Joyal): Mr. Robinson, I think you have too much respect for the Chair to say to the Chair that the Chair will be caught in a criminal offence.

Mr. Robinson: Mr. Chairman, I was not referring to the Chair. I know the Chair is not ever engaged in criminal activity, it would be unparliamentary to suggest otherwise.

Mr. Chairman, I am concerned that if this right which is proposed in the charter is to have any substance for the poor of this country who are charged with a serious criminal offence, if this is to be a charter for all people in Canada and not just for those who can afford to retain a lawyer, that we should live up to our commitments, the commitments we have under the International Covenant on Civil and Political Rights. and that we should entrench this right in the constitution.

It has been suggested that, well the judge can always appoint a lawyer; but, of course, that is purely discretionary and it is not good enough to rely on that.

It has also been suggested that the provinces have enacted certain legal aid schemes. Well, as the Minister himself has said, what protection has been legislated yesterday can be removed or eliminated by another enactment tomorrow.

We are writing a charter for the future, for decades possibly, Mr. Chairman. This right, if it is to mean anything to the poor, if there is to be any justice for the poor, it must be

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supplemented by the right to retain counsel and that is the purpose of this amendment, and it is for that reason that I would hope that all members of this Committee would support the proposal.

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

I would like to call the vote.

An hon. Member: I would like a recorded vote, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Yes.

Amendment negatived: yeas, 9; nays, 13.

The Joint Chairman (Mr. Joyal): I would like then to, invite the mover of the next amendment, Mr. Robinson, to move the next amendment in the usual way.

We are on the same page N-13, Clause 10, page 5.

Mr. Robinson: Thank you, Mr. Chairman.

I would then move—subparagraph (b) on that page, that Clause 10 be amended by adding—and I assume that would be after paragraph (c) after the disposition—by adding after paragraph (c) the following:

(d) to protection against self-crimination from the moment of arrest and the right to be informed of that right.

En français. Il est proposé

Que l’article 10 du projet de Loi constitutionnelle de 1930 soit modifié par

b) par adjonction, après l’alinéa e), de ce qui suit:

«d) dès le moment de son arrestation, de ne pas s’incriminer et d’être informé de ce droit.»

Mr. Chairman, if I may, on this particular amendment, this amendment is proposed in response to representations made by a number of witnesses appearing before the Committee who recognized a very serious deficiency in the Charter as it was originally presented by the government.

That deficiency was that there was no right to protection from self-incrimination at any point in criminal proceedings. That included not only the point after charge and during trial, but also any time up until the point of charge

Mr. Chairman, the right to protection from self-incrimination is one which is contained within the Canadian Bill of Rights and one which has been taken for granted by Canadians for many, many years.

The important purpose of this amendment is to extend that right not just to the point beyond the actual charge, but to make it very clear that that right extends from the moment of detention or arrest.

I would like to ask, before going any further, Mr. Chairman, whether my assumption is correct and that it is the intention of the government that protection from self-incrimination should apply from the moment of arrest or detention.

[Page 136]

Mr. E. G. Ewaschuk (Director of Criminal Law, Amendments Section, Department of Justice): Not in the constitutional form. Mr. Robinson.

In fact, what is intended is to reinforce the Bill of Rights in Clause 2(d) which talks about self-incrimination and has been interpreted in case law which says that self-incrimination deals with compulsion of testimony in court.

We propose to deal with that in Clause 11 and Clause 11(c).

The Supreme Court of Canada in a very scholarly view, reviewed the whole history of self-incrimination and determined that “self- incrimination” means not to be compelled to testify in a court proceeding.

Mr. Robinson: Would you not agree that Canadians at this point at least have the right under ordinary statute law interpretation to remain silent from the moment of arrest, or is there any protection of that nature accorded to Canadians?

Mr. Ewaschuk: Well, in they are arrested they are generally cautioned before they are interrogated. They are told that they do not have to say anything. They question whether or not there is a failure to caution is a consideration determining whether or not a confession is voluntary—that is taken from the Boudreau case of 1949, the Supreme Court of Canada.

Mr. Robinson: What is there in this Charter of Rights which would protect a person arrested from having a confession extracted from them before they were charged with a particular offence?

What is there in this particular Charter from being forced to give evidence against themselves before they are charged?

Mr. Ewaschuk: There is nothing in the Charter. There is just a long history in our common law. as interpreted by the Supreme Court of Canada and recently, again, in a case from British Columbia—the Horvath case: that has been extended and on the question of voluntariness, and so on, it is tougher and tougher to get the statements in. But that has been a very careful evolution through case law.

Mr. Robinson: Well. Mr. Chairman. this is precisely my concern and Mr. Ewaschuck has added to that concern which was expressed by the B.C. Civil Liberties Association, the Canadian Civil Liberties Association and other groups. and that is, that as it stands now, under the provisions of this Charter, a person who is arrested on a particular suspicion would have no right whatsoever to the protection from self-incrimination.

They could be subjected to compulsory process, to give evidence against themselves, to point out evidence wherever it might exist and they would not have the right to remain silent.

That right, as Mr. Ewaschuk has said, has been taken for granted for a long time and could be removed at any time.

The purpose of this amendment, Mr. Chairman, is to make it very clear that that fundamental right should be extended to all Canadians from the moment of arrest.

[Page 137]

I would like to quote from the Canadian Civil Liberties Association brief to explain why that is important.

They say that in a society where the government truly respects the dignity and integrity of its citizens, protection against self-incrimination or the right to remain silent is one of the cornerstones of criminal justice. In order to maintain a fair balance when the might of the state is focused on prosecuting a single individual, the justice system in a democratic society has demanded that the government seeking to punish the individual must produce the evidence against him by its own independent labours, rather than by the simple and often cruel expedient of compelling it from his own mouth.

So, Mr. Chairman, it is essential that this right, if it is to mean anything, must extend from the moment of arrest and not from the moment of charge

That is the purpose of this particular amendment which, as I say, is supported by the B.C. Civil Liberties Association, the Canadian Federation of Human Rights and Civil Liberties Associations and the Canadian Civil Liberties Association, among other groups.

Thank you, Mr. Chairman.

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

Mr. Epp: I see it is 10:30 p.m.

The Joint Chairman (Mr. Joyal): The Chair observes that it is 10:30 pm. and this meeting is adjourned until 3:30 tomorrow afternoon.

[Translation]

The meeting is adjourned.

WITNESSES

From the Department of Justice:

Mr. Roger Tassé, Deputy Minister;
Dr. B.L. Strayer, Assistant Deputy Minister, Public Law;
Mr. Fred Jordan, Senior Counsel, Public Law;
Mr. E.G. Ewaschuk, Director, Criminal Law Amendments Section.

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

Committees, Government Documents, Section 10 [Constitution Act, 1982], Section 15 (2) [Constitution Act, 1982], Section 15 [Constitution Act, 1982], Section 24 [Constitution Act, 1982], Section 52 (1) [Constitution Act, 1982], Section 6 [Constitution Act, 1982], Section 7 [Constitution Act, 1982], Section 8 [Constitution Act, 1982], Section 9 [Constitution Act, 1982], Votes and Proceedings Legal Rights (Charter of Rights and Freedoms), Section 10 (Charter of Rights and Freedoms), Section 24 (Charter of Rights and Freedoms), Section 52.1 (Charter of Rights and Freedoms), Section 6 (Charter of Rights and Freedoms), Section 8 (Charter of Rights and Freedoms), Section 9 (Charter of Rights and Freedoms)

PrimaryDocuments.ca

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 46 (27 January 1981)

Constitution of Canada

MINUTES OF PROCEEDINGS

EVIDENCE

WITNESSES

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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 46 (27 January 1981)

Constitution of Canada

MINUTES OF PROCEEDINGS

EVIDENCE

WITNESSES

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