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 49 (30 January 1981)


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Date: 1981-01-30
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 49 (30 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 49

Friday, January 30, 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:

Austin
Lapointe
Lucier
Muir
Murray
Petten
Thériault
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Epp
Fraser
Hawkes
Irwin
Ittinuar
Lapierre
Mackasey
McGrath
Munro
Nystrom
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 Friday, January 30, 1981:

Mr. Tobin replaced Mr. Gauthier;
Mr. Hnatyshyn replaced Mr. Epp;
Mr. King replaced Mr. Fraser;
Mr. Hawkes replaced Mr. Beatty;
Mr. Kushner replaced Mr. McGrath;
Mr. McRae replaced Mr. Tobin;
Mr. Epp replaced Mr. Hnatyshyn;
Mr. Fraser replaced Mr. Kushner;
Mr. Tobin replaced Mr. McRae;
Mr. McGrath replaced Mr. King;
Mr. Ittinuar replaced Mr. Robinson (Burnaby);
Mr. Munro (Esquimalt-Saanich) replaced Mr. Crombie.

[Page 3]

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

On Friday, January 30, 1981:

Senator Muir replaced Senator Donahoe;
Senator Murray replaced Senator Asselin.


[Page 4]

MINUTES OF PROCEEDINGS

FRIDAY, JANUARY 30,1981
(89)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:45 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Hawkes, Hnatyshyn, Irwin, Joyal, King, Kushner, Lapierre, Mackasey, McGrath, McRae, Nystrom, Robinson (Burnaby) and Tobin.

Other Members present: Messrs. Allmand, Epp and Fraser.

In attendance: From the Research Branch of the Library of Parliament: Messrs. John McDonough and Hugh Finsten, 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.)

Clause 27 carried.

Mr. McGrath moved,—That the proposed Constitution Act, 1980 be amended by

(a) adding thereto immediately after line 22 on page 8 the following clause:

“28. Nothing in this Charter affects the authority of Parliament to legislate in respect of abortion and capital punishment.”; and

(b) renumbering the subsequent clauses accordingly.

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

YEAS:

The Honourable Senators

Asselin
Donahoe
Tremblay

[Page 5]

Messrs.

Crombie
Hawkes
Hnatyshyn
King
McGrath—8

NAYS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Thériault
Wood

Messrs.

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

Clause 28 carried, on division.

Mr. Hnatyshyn moved,—That the proposed Constitution Act, 1980 be amended by

(a) adding thereto immediately after line 24 on page 8 the following heading and clause:

“Obligation to Examine Regulations and Bills

29. (1) The Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor General in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration and every Bill of Commons, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the House of Commons at the first convenient opportunity.

(2) The Attorney General of a province shall, in accordance with such regulations as may be prescribed by the Lieutenant Governor in Council of the province, examine every proposed regulation in draft form and every Bill introduced in or presented to the legislative assembly of the province in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the legislative assembly at the first convenient opportunity”; and

(b) renumbering the subsequent clauses accordingly.

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

YEAS:

The Honourable Senator

Tremblay

Messrs.

Crombie
Hawkes
Hnatyshyn
King
Kushner
Robinson (Burnaby)—7

[Page 6]

NAYS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Thériault
Wood

Messrs.

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

On Clause 29 of the proposed Constitution Act, 1980

Mr. Nystrom moved,—That Clause 29 of the proposed Constitution Act, 1980 be amended by striking out lines 36 and 37 on page 8 and substituting the following:

“tion 15, insofar as it relates to age and physical and mental disability, shall not have application until one year after this Act, except Part V, comes”

After debate, the question being put on the amendment, it was negatives on the following show of hands: YEAS: 1; NAYS: 19.

The question being put on Clause 29, it was carried on the following division:

YEAS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Petten
Thériault
Tremblay
Wood

Messrs.

Bockstael
Corbin
Crombie
Hawkes
Hnatyshyn
Irwin
Lapierre
King
Kushner
Mackasey
McRae—19

NAYS:

Messrs.

Campbell (Miss) (South West Nova)
Nystrom
Robinson (Burnaby)—3

Mr. Robinson (Burnaby) moved,—That the proposed Constitution Act, 1980 be amended by adding thereto immediately after line 38 on page 8, the ff section:

“30. (1) The rights and freedoms set out in sections 2 and 6 are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[Page 7]

(2) In time of a public emergency that threatens the life of the nation or any part thereof, the existence of which is proclaimed by proclamation issued by the Governor General under the Great Seal of Canada and confirmed by a resolution approved by at least two thirds of the members of the House of Commons, the rights set out in section 7 and paragraphs 10(c) and 11(e) may be derogated from to the extent required by the exigencies of the emergency except that measures taken pursuant to this subsection shall not involve any distinction on a ground set out in subsection 15(1).”

After debate, by unanimous consent, the amendment was amended by deleting sub-clause (1).

After further debate, the amendment, as amended, was allowed to stand.

At 12:37 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(90)

The Special Joint Committee on the Constitution of Canada met this day at 2:52 o’clock p.m., the Joint Chairman. Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Austin, Hays, Lapointe, Lucier, Muir, Murray, Petten, Thériault, Tremblay and Wood.

Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Fraser, Irwin, Joyal, King, Mackasey, McGrath, Munro (Esquimalt-Saanich), Nystrom and Robinson (Burnaby).

Other Members present: Messrs. Allmand, Hawkes, Manly and Waddell.

In attendance: From the Research Branch of the Library of Parliament: Messrs. John McDonough and Hugh Finsten, 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 the motion, as amended, of Mr. Robinson (Burnaby),—That the proposed Constitution Act, 1980 be amended by adding thereto immediately after line 38 on page 8, the following section:

“30. in time of a public emergency that threatens the life of the nation or any part thereof, the existence of which is proclaimed by proclamation issued by the Governor General under the Great Seal of Canada and confirmed by a resolution approved by at least two thirds of the members of the House of Commons, the rights set out in section 7 and paragraphs 10(c) and 11(e) may be derogated from the extent required by the exigencies of the emergency except that measures taken pursuant to this subsection shall not involve any distinction on a ground set out in subsection 15(1).”

[Page 8]

By unanimous consent, the motion as amended, was further amended by deleting the words:

“and confirmed by a resolution approved by at least two thirds of the members of the House of Commons”

and adding the following after subsection 15(1):

“The measures that derogate from the rights affirmed in these sections will lapse within 30 days if not further extended by a 2/3 vote of the members of the House of Commons”

After debate, the question being put on the amendment, as amended, it was negatived on the following show of hands: YEAS: 9; NAYS; 14.

Clause 30 carried.

On Clause 31 of the proposed Constitution Act, 1980

Mr. Robinson (Burnaby) moved,—That Clause 31 of the proposed Constitution Act, 1980 be amended by striking out the word “and” at the end of paragraph (b), adding the word “add” at the end of paragraph (c) and adding immediately after line 15 on page 9 the following:

“(d) fully implementing the international Covenant on Economic, Social and Cultural Rights and the goals of a clean and healthy environment and safe and healthy working conditions.”

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

YEAS:

Messrs.

Nystrom
Robinson (Burnaby)—2

NAYS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Muir
Murray
Petten
Thériault
Tremblay
Wood

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Fraser
Hawkes
Irwin
Lapierre
Mackasey
McGrath
Tobin—22

Mr. Irwin moved,—That Clause 31 of the proposed Constitution Act, 1980 be amended by striking out lines 16 to 22 on page 9 and substituting the following:

“(2) Parliament and the government of Canada are com mitted to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”

[Page 9]

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

Clause 31, as amended, carried.

At 4:00 o’clock p.m., the sitting was suspended.

At 4:55 o’clock p.m., the sitting resumed.

On Clause 24 of the proposed Constitution Act, 1980

Mr. Ittinuar moved,—That the heading preceding Clause 24 on Clause 24 of the proposed Constitution Act, 1980 be amended by

(a) striking out the heading immediately preceding line 1 and lines 1 to 6 on page 8 and substituting the following:

“General

24. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

25. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”; and

(b) renumbering the subsequent clauses accordingly.

After debate, by unanimous consent, the amendment was amended by deleting the portion set out on Clause 25.

The question being put on the amendment as amended, it was agreed to on the following division:

YEAS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Muir
Murray
Petten
Thériault
Tremblay
Wood

Messrs.

Bockstael
Campbell l(Miss) (South West Nova)
Corbin
Epp
Fraser
Hawkes
Irwin
Ittinuar
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Nystrom
Tobin—24

Clause 24, as amended, carried.

Mr. Ittinuar moved,—That the proposed Constitution Act, 1980 be amended by

(a) adding immediately after line 2 on page 9 the following headings and section:

[Page 10]

“PART II

Rights of the Aboriginal Peoples of Canada

31. (1) The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed

.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada”; and

(b) renumbering all subsequent Parts and clauses accordingly.

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

YEAS:

The Honourable Senators

Austin
Hays
Lapointe
Lucier
Muir
Murray
Petten
Thériault
Tremblay
Wood

Messrs.

Bockstael
Campbell (Miss)(South West Nova)
Corbin
Epp
Fraser
Hawkes
Irwin
Ittinuar
Lapierre
Mackasey
McGrath
Munro (Esquimalt-Saanich)
Nystrom
Tobin—24

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

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee


[Page 11]

EVIDENCE

(Recorded by Electronic Apparatus)

Friday, January 30, 1981

[Text]

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

May I invite the honourable members to take their seats so that we might resume consideration of the proposed motion on Clause 27.

On Clause 27—Application to territories and territorial authorities

The Joint Chairman (Mr. Joyal): l would like to invite honourable members to take Clause 27. It is a clause in the proposed motion where the Chair has received no amendments and unless there is a question or an intervention on that proposed clause the Chair will be ready to call the vote on Clause 27.

Mr. McGrath: What are we agreeing to, sir?

The Joint Chairman (Mr. Joyal): l have already said, honourable James McGrath, that we are on Clause 27 and that on Clause 27 it is a clause identified application to territories and territorial authorities. The Chair has not received any amendments and if there is no questioner or no intervention on the proposed clause, the Chair will call the vote.

Honourable David Crombie.

Mr. Crombie: An undertaking last night, Mr. Chairman, by the Minister of Justice with respect to our new Clause 21, I wonder if they are ready this morning?

The Joint Chairman (Mr. Joyal): That is a good question.

Hon. Jean Chrétien (Minister of Justice): l understand that there was some discussion from some of my people and you but I have not heard anything back so far.

Mr. Crombie: I am sorry, Mr. Chairman.

Mr. Chrétien: We have a draft but now it has to be reviewed by our legal advisors. We have politically agreed but now we have to put it in jargon, the proper jargon.

Mr. Crombie: God knows what will happen to it, sir, once those lawyers get at it.

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

l wonder if we could get some indication too in relation to Clause 24 of the proposed motion, that one related to aboriginal rights and if we might have an indication when the Committee will be in a position to debate and discuss on that one.

Mr. Chrétien: Mr. Chairman.

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

Mr. Chrétien: It might be that, you know, there is some new work being done on this problem and it is a complicated area, and it might be that we will know later on today, that we will be asking a postponement to deal with the problem of native

[Page 12]

rights as an item, perhaps tomorrow or Monday morning at the latest.

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

Mr. Nystrom.

Mr. Nystrom: I thought we had agreed yesterday, Mr. Chairman, we would hold this off until Monday evening. I would have to go back and check the record, but that was my understanding.

The Joint Chairman (Mr. Joyal): Well, I have to say very humbly that I did not get that it was stood until Monday evening. I have, of course, no personal objections to standing the clause until Monday evening but I think that generally members would like to know when that specific clause, taking into consideration its importance, will be dealt with because some members want to be attending the meeting when this clause is called by the Chair, and I think it is appropriate that it be said very clearly when we will be dealing with that very clause.

So then we are back on Clause 27.

Clause 27 agreed to.

The Joint Chairman (Mr. Joyal): We are then on Clause 28. Before I call Clause 28, there is a proposed amendement that would add a new clause after Clause 27 and it is a proposal that you will find on an amendment identified CP-12, new clause following Clause 27, page 8. It is a proposed amendement introduced by the Conservative Party, and I would invite the honourable James McGrath to move the proposed amendment.

I will repeat for the benefit of our viewers that we are dealing this morning with a certain number of clauses of the proposed motion entitled, General or Dispositions generales and that the Chair is calling an amendment introduced by the Conservative Party that would add a new clause after Clause 27 in that very part of the proposed resolution entitled Dispositions generales or General.

The honourable James McGrath.

Mr. McGrath: Thank you, Mr. Chairman.

I move that the proposed constitution act, 1980 be amended by (a) adding thereto immediately after line 24 on page 8 the following heading and clause:

“Obligation to examine regulations and bills”

Duties of Minister of Justice

29. (1) The Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor General in Council examine every regulation transmitted to the Clerk of the Privy Council for registration and every Bill introduced in or presented to the House of Commons, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and . . .

>The Joint Chairman (Mr. Joyal): I am sorry, honourable James McGrath, we are dealing with the amendement identified CP-12.

I have already informed the honourable members that the printing of the number 12 is rather weak.

[Page 13]

Mr. McGrath: It is my mistake. I came in late and I should have been a little bit more careful. I am one amendment ahead of myself.

The Joint Chairman (Mr. Joyal): Oh, I see. It is because you have done so much work during the break that you have an amendment ahead of us.

Mr. McGrath: Not to suggest, Mr. Chairman, that this amendment is not important, but the other amendment is equally interesting and will probably create some interest and discussion in the Committee.

At any event, with may apologies, Mr. Chairman, l now have the correct amendment. Members will find it on CP—12, page 8, a new clause following Clause 27.

I move that the proposed constitution act, 1980 be amended by (a) adding thereto immediately after line 22 on page 8 the following clause:

Abortion and capital punishment

28. Nothing in this Charter affects in the authority of Parliament to legislate in respect of abortion and capital punishment.

and, (b) renumbering the subsequent clauses accordingly.

I will ask mon cher colleague Tremblay to read it en français, s’il vous plait.

[Translation]

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

Honourable Senator Tremblay.

Senator Tremblay: Thank you. Mr. Chairman.

It is moved by the Honourable James McGrath

That the proposed Constitution Act, 1980 be amended by

(a) adding thereto immediately after line 22 on page 8 the following clause:

28. Nothing in this Charter affects the authority of Parliament to legislate in respect of abortion and capital punishment
.

(b) and renumbering the subsequent clauses accordingly.

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

[Text]

l would like to invite the honourable James McGrath to introduce the amendment in the usual way.

Mr. McGrath: Well, Mr. Chairman, I will try to be brief because the two subject areas addressed in our amendment have been discussed extensively in the Committee both during the period when we were hearing witnesses and during certain phase of clause-by-clause.

And it is interesting to note, Mr. Chairman. that in this particular amendment we have noted that the Minister of Justice and the Solicitor General have been consistent in this Committee in this particular regard because they have both indicated to the Committee that Parliament should deal with both questions, that is the question of abortions and the

[Page 14]

question of capital punishment, and that it should not be left to the courts to interpret the Charter in the context of the abortion laws of the country and whether or not we should have capital punishment, or whether or not capital punishment constitutes a cruel and unusual punishment.

Mr. Chairman, there are very good and sound reasons for our amendment and why we feel very strongly that this matter should be dealt with by Parliament.

It is interesting that on both questions the Progressive Conservative caucus have deemed them to be questions of conscience and hence not questions to be determined by the party Whip. Accordingly, when we put forward a position in this regard it is merely to respect the wishes of our caucus that we not take a position on either the question of abortion or the question of capital punishment.

I do not think, Mr. Chairman, it would serve the interest of the Committee or the interest of time to go into the substance of either question other than to repeat to honourable members that we feel it should be a matter that should be dealt with by Parliament because parliamentarians can react and reflect the pressures of society which sometimes change on these questions but, generally speaking, they are usually quite active in terms of public interest.

And with that brief explanation, Mr. Chairman, and reminding the Committee that both the Minister of Justice and the Solicitor General have strongly supported the position that the questions of capital punishment and abortion should be dealt with by Parliament, I commend our amendment to the Committee.

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

Mr. Ron Irwin.

Mr. Irwin: Thank you, Mr. Chairman.

These particular items that have been raised by the honourable Mr. James McGrath, Mr. Chairman, are so explosive and so prone to be left to misconception and wrong use of words that I would like at this point to put our position in verbatim, with the permission of Mr. McGrath. Thank you, Mr. Chairman.

The government agrees that such matters as abortion and capital punishment should be left to be dealt with from time to time by the democratically elected representatives in Parliament, as evolving social and moral issues.

This is the position that we took, for example, when the abortion issue was raised earlier in connection with the proposed NDP amendment to Clause 2, “every person”.

However, it is neither necessary nor appropriate to spell out such a position in the Charter. With respect to these matters it is not felt that any provision in the proposed Charter would lead the courts to conclude that abortion or the death penalty would be legislative matters forbidden to Parliament.

[Page 15]

The right of life is not unequivocally guaranteed, nor is cruel and unusual punishment likely to lead to a ban on the death penalty.

There is a danger that by specifically preserving Parliament’s power in these two areas that the courts could draw the implication that Parliament’s power is somehow diminished in other areas that are not named in such a clause.

Thank you, Mr. Chairman.

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

Mr. Hawkes: Thank you. Mr. Chairman

Needless to say, the comment made by the spokesman on behalf of the government is disappointing not only to members of this side of the table around this Committee, but I think it is disappointing to a number of Canadians who have appeared before this group, and the people that they represent.

The government, I think, has the right to its opinion. The government is taking the advice from the officials of the Justice Department that in fact Parliament’s rights to legislate in these areas will not be affected by the Charter.

I think it should be pointed out that that is nothing more than a probability statement. It is the government’s guess that courts of the future will give this Charter the kind of interpretation that the spokesman suggests. But it is only a probability statement and if we look at Charters around the world with similar kinds of wording, one thing is at least clear, that clauses such as many of the clauses which are contained in this Charter are used by different groups who argue in court for the perspectives that they have. And, in effect, what the government has decided to do is to turn over to the process of suit and countersuit the issues of both abortion and capital punishment.

The judges may in fact rule the way that the government suggests, that Parliament has the authority, but I think it is a mistake for the government to suggest that that decision is absolutely determined by the wording that we find in the Charter.

If the government really believes that these issues are issues of conscience which should be decided by elected people, the only one secure way to ensure that is the way that we did last evening in terms of the dissentient and separate schools. The government felt and said historically that the Charter would not interfere but after representations from interest groups across the country and from the member for Newfoundland. they finally began to see the wisdom…

Mr. McGrath: For St. John’s East.

Mr. Hawkes: From St. John’s East in Newfoundland.

They began to see the wisdom and last night agreed that the separate and dissentient schools were so important to the fabric of Canadian society that it was worth putting in a clause to protect those.

I wish the members opposite might use their own sense of conscience as we vote on this issue because it costs us nothing and it achieves a great deal in terms of the preservation of the

[Page 16]

kind of society that we have had that we value to simply put in this clause.

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

The honourable Ray Hnatyshyn.

Mr. Hnatyshyn: Thank you, Mr. Chairman.

I think this is a matter which we should pause for a moment to reflect on because i listened with some interest to Mr. Irwin’s explanation of the government position and he, I think, bases his opposition to this proposed amendment that somehow it might tend to diminish the interpretation of the Charter as a whole because it somehow would restrict or attempt to restrict the ability of the court to deal with a particular issue or, in this instance, two issues.

Mr. Chairman, I guess I come down on this issue on this basis, that what we are looking at here is whether or not Parliament will be seized with the exclusive responsibility to legislate with respect to abortion and capital punishment. And as Mr. Irwin points out, quite rightly, these are if not explosive, certainly complicated issues, issues that are not black and white issues, issues in which each member of Parliament has his own particular point of view but the consensus that is developed with respect to the issue may in fact be one which has, shall we say, shades of gray involved, or different shades in terms of a complex issue.

i think we have to look at the experience as to what has happened in the United States where there has been some judicial activity with respect to the issue of capital punishment and the right to life particularly. I find that in terms of constitution, the courts therefore looked at it as these issues in black and white terms. In other words, the decision is that all capital punishment, for example, it may well be, it could well be on the part of the courts, cruel and unusual punishment.

We in Parliament will be dealing with the kinds of offences that would in fact bring about that kind of punishment, that is capital punishment, and we may find that in some instances, and, indeed, hanging or capital punishment is cruel unusual punishment with respect to a particular offence.

We all tend to think of capital punishment in respect of the offence of murder but we do not have to look very far back in history to know that in many countries capital offences are far broader than that of murder. There have been instances where theft, the penalty for theft was in fact one which involved the ultimate penalty, that is capital punishment.

So the difficulty that I have is two-fold: one is that because it is a complicated issue the very argument Mr. Irwin put forward should in fact persuade us to support this particular amendment.

Secondly, let us just look at what happens in terms of the ability of parliamentarians to deal with the situation if we do not have this provision in the—just one final statement—in terms of the constitution.

It is quite a different thing to make an amendment with respect to capital punishment in case there is a decision of the Supreme Court of Canada which is repulsive to Canadians and

[Page 17]

members of Parliament and involves an extraordinary procedure of the complexity of the issue, that this is a very worthwhile suggestion that comes forward and one that I think will have no repercussions with respect to the decisions of the court with respect to the rest of the constitution.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Ray Hnatyshyn.

The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

I have questions for the law officers of the Crown, if I could, or the Minister, I am sorry.

Mr. Minister, this clause of course is in relation to both Clause 7, or we are proposing the clause to deal with some of the consequences of both Clause 7 and Clause 12, Clause 7 dealing with the right to life and Clause 12 dealing with cruel and unusual punishment.

Let me deal, if I could, first of all with Clause 7 in terms of right to life. Could you explain to the Committee your understanding of the American interpretation in their Charter of Rights with respect to the right to life. How does it go with the question of abortion?

Mr. Chrétien: I will ask Mr. Jordan to take it.

The Joint Chairman (Mr. Joyal):

Mr. Jordan.

Mr. Fred Jordan (Senior Counsel, Public Law, Department of Justice): Mr. Chairman, the jurisprudence is obviously still evolving there as it does on any constitutional question, but the present status is that the constitution does not preclude the right of states to legislate to permit abortions.

The present jurisprudence in the United States is that the right to life or any other provision, the due process provision, does not preclude a state from legislating to permit abortions under circumstance they may wish to. This has been built around the concept of the liberty of the individual and through that a translation of the concept of privacy and that goes to the contraception issue, but on the question of the right to an abortion, it has been held that the constitution does not preclude laws being enacted to authorize it and to spell out the conditions under which it may be obtained.

Mr. Crombie: How does that differ from Canadian courts?

Mr. Jordan: The only jurisprudence we have in Canada at the moment on the question of abortion relating to the Bill of Rights is the Dailor Case which we spoke of the other day, in the Ontario High Court which hald that the provisions of the Criminal Code dealing with abortion were not a contravention of the Canadian Bill of Rights.

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Mr. Crombie: If the Supreme Court of Canada indicates that the right to privacy includes the right to abortion, what recourse does the Canadian Parliament have under this proposal?

Mr. Jordan: I am sorry?

Mr. Crombie: If the Supreme Court of Canada indicates in a judgment that the right to privacy includes the right to abortion, what recourse does the Parliament of Canada have?

Mr. Jordan: All it said was it does not preclude states from passing laws . . .

Mr. Crombie: If the Supreme Court of Canada decides that the right to privacy includes the right to abortion, what then can the Parliament of Canada do?

Mr. Chrétien: I think that you are choosing the right to privacy that is not a right described here, but you just put the hypothetical question that if the Supreme Court were to use a section of this to move into the area of abortion, I think that we said and we repeat that there is nothing in this charter that would prevent the House of Commons and the Senate to vote laws that would be effective on abortion and capital punishment.

Mr. Crombie: Well, as I understand it, Section 7 says everyone has the right to life . . .

Mr. Jordan: And not to be deprived thereof except by fundamental principles of justice.

Mr. Crombie: If the court decides that the foetus is not included in the interpretation of everyone, clearly the right to abort is there, that is so?

Mr. Jordan: Yes.

Mr. Crombie: I guess I should rephrase my question. If the Supreme Court decides that “everyone” does not include a foetus, then the right to abort exists.

Mr. Jordan: Yes.

Mr. Crombie: My concern is that I wish to reserve the right for Parliament to legislate on the matter and I want to know what happens if the Supreme Court exercises its power and therefore precludes the opportunity for Parliament to act. That is all I want to know.

Mr. Jordan: If I understand, Mr. Chairman, Mr. Crombie’s question correctly if they interpreted “everyone” to say that it does not include the foetus, then there is no problem because one would be able to enact laws in relation to abortion as we do now.

Mr. Crombie: I will think about that for 30 seconds.

The Joint Chairman (Mr. JoyaI): I might come back to you, Mr. Crombie. I know it is a difficult question.

I think it is a very important issue and the Chair would certainly not like to give the impression to the honourable members that they are pushed really this morning on that very amendment.

Mr. Bockstael.

Mr. Bockstael: Thank you Mr. Chairman, I would like to put a question to the Minister of Justice.

Mr. Minister, I, for one, must say that I am very disappointed that in Clause 7 we did not see fit to put “everyone has the right to life from conception to natural death”. I do not intend to get dramatic, but if we look at the Old Testament, we all deplore the fact that Emperor Herod would put the wholly

[Page 19]

innocent from two years and under to death by proclamation. Yet we, as parliamentarians who are supposed to look to equitable laws in this country, acknowledge that there are some 65,000 babies aborted every year. If we do not put this in the Charter, in your position as Minister of Justice, can you tell us whether it is your intention, or the governments intention to enact legislation that would clarify this and amend the Criminal Code so that abortion would be not allowed in this country.

Mr. Chrétien: This matter has been dealt with in the House of Commons some years ago and we have added some clauses to the Criminal Code to the effect that there are only certain types of therapeutic abortions can be done in Canada under medical advice, and we do not intend to change this legislation.

Of course some people think that it is not adequate. Very often the administration by provincial governments very very much from one province to another, and sometimes the provinces. because the administration of the law of the Criminal Code is done by the provinces. We passed the amendment, but the laying of charges is done by provincial administration. There are a lot of complaints, based on the way the law is administered. In terms of the legal text, we are satisfied that the text we have now permits only abortion under very strict control. l am told that sometimes the controls are not adequately enforced, but the matter of enforcing the law, the Criminal Code, in any province is done by the Attorney General.

We do not see at this moment that it is a flaw in the federal legislation. I do think that some of the problems come from the fact that the administration varies very much from one province to another one.

Mr. Bockstael: A supplementary. Well, if we follow that thinking, Mr. Minister. your point is that the law is adequate. Is it not a parallel that if highway regulations say that you are not supposed to go more than 60 kilometres per hour but everybody goes 85, but that is all right because it is not enforced; is there any way that you can foresee your department and the federal government putting teeth into the enforcement?

If the law itself is satisfactory and yet the end results are not achieved, what are we going to implement so that it is achieved?

Mr. Chrétien: Our constitution, the enforcement of the law passed by Parliament in the Criminal Code, it is the responsibility of the provincial Attorneys General. I do not lay charges under the Criminal Code unless it is on federal territory, like in the Northwest Territories and so on and the Yukon where I am the Attorney General for those territories.

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In the provinces, the enforcement of the law is done by the Attorneys General of the provinces so if we pass the Criminal Code, to give you a completely different example, suppose we passed a law on robbery, for example, and we know of a case of robbery in Ontario, and suppose that the Attorney General of Ontario decides not to proceed, there is nothing I can do. I can ask him to do that but he has the responsibility to decide which case he will take in front of the court. It is not my responsibility.

Mr. Bockstael: Thank you.

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

Miss Campbell.

Miss Campbell: Thank you, Mr. Chairman.

Just following on Mr. Crombie’s questioning because I think there was an element of misleading, so perhaps the officials could just clear it up.

I think Mr. Crombie tried to say that the Charter gives rights and freedoms. He then went on to say it gives the right to life and because it has been interpreted by the courts that the foetus is not the start of life, therefore you have a right to an abortion, but the very fact that the Charter does not talk about abortion does not give a right, it just does not talk about it.

There is no such thing, just because the Charter has not talked about a right, that there is a right outside of the Charter, and it seems to me that where the trap is, is that if that is to be discussed, that is where the legislatures come in, the Charter is not going to talk about all the Rights and Freedoms that we may think exist, we have just enumerated certain rights and freedoms; but by the very fact of that enumeration there does not mean there is another right opposite to that, the right to abortion.

I do not think that Mr. Crombie would say that the logic of that goes from: if you have a right to life, and the foetus is not included in that right to life, then by the very interpretation of that there is a right to an abortion because that whole area has not been declared a right.

Mr. Chrétien: Our position is very simple. We have an abortion disposition in the Criminal Code that some like, that some do not like, some would like to have changed, some to abolish it completely and have nothing there, others would like to make abortion easier.

What we say is there is nothing in this Charter that can prevent Parliament from going one way or the other because it will remain an area under the Criminal Code and that is the statement we have made and we will repeat, that is why we say this clause is not needed and I think that if we had started to accept that all sorts of problems in the social area should be listed that are not there, we could have been debating this forever; we can dream of many other things.

So we say that the authority of Parliament to deal with abortion and with the death penalty remains exactly the same.

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Miss Campbell: Forget, let us say, the abortion as such. I think what Mr. Crombie was saying was the fact of not enumerating a right would give a right. In other words, I would interpret this Charter as having enumerated certain rights and freedoms; just because one fact is not there does not mean that that is a right, it has not been interpreted as a right under this Charter, it has not been enunciated as a right or freedom that we have included in here.

The fact that we have the right to life and it has been interpreted in a certain way by the Supreme Court does not by the very fact we have not enumerated another right mean that that is a right. In other words, the right to abortion is not a right that is included in here—I will start again, because there is a trap in the . . .

An hon. Member: You want to tell that to the foetus.

Miss Campbell: What I am saying is that a Charter gives rights but the very fact that a Charter does not talk about certain things does not mean that it is implied there are rights to them.

Mr. Chrétien: I think that the Charter is an enumeration of the main rights that Canadian citizens have, but it is not an enumeration of all the rights of all Canadians.

Miss Campbell: Yes, but by the very fact yeti can look at that as a negative as well, the fact that it is not in the Charter does not necessarily mean that it is a right.

Mr. Chrétien: Of course.

Miss Campbell: That is right.

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

Honourable David Crombie, you wanted to clear up the doubt you still have in your mind.

Mr. Crombie: Yes. Thank you, Mr. Chairman.

I appreciate the discussion I had earlier but I do remain unconvinced and l do not wish to unduly delay the Committee but for my simple mind I would like to go over it very slowly.

If the court decides that the unborn has a right to life, then I take it that the opportunity for a therapeutic or any other kind of abortion is out? If the unborn child has a right to life. then an abortion is not possible under the Charter; it is against the Charter?

Mr. Jordan: Mr. Chairman, Clause 7 has a qualifying clause on it. None of those rights are absolute. It is the right to life and not to be deprived thereof except in accordance with, I have forgotten what wording we ended up with, but I think it was fundamental principles of justice, which we explained at that time to be procedural.

Consequently, even if a foetus were to be determined to be an “everyone”, a person, then the only right not to have that life taken away is in an arbitrary fashion, a fashion which does not apply the rules of natural justice.

Now, that may be a little bit difficult from the context of the foetus because I do not know who would speak for the foetus, presumably the parents and society, whoever else could claim to be a party to the proceedings, but those rights are not

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absolute. The right to life, liberty and security of person are rights that may not be taken away except in accordance with the principles of fundamental justice. They are not absolute.

Mr. Crombie: There are no rights that are absolute. I do not know of a right that is absolute.

Mr. Jordan: But that one specifically is. . .

Mr. Crombie: So surely that is not—l do not wish to be quarrelsome, Mr. Chairman, it is not a sufficient answer to say that this right is not absolute. No right is absolute. My concern, by the way, is not whether we have a negative right or positive right or because he said you do not have a right over here, you have one over there; or you have got one there. you do not have one over here; my concern is to preserve for Parliament supremacy on the matter.

Now, no matter which way I turn this question l come back to a court, I come back to a court that is interpreting a Charter and that Charter, if it is in the Charter, either by application or by indirect application that Charter is supreme over Parliament, that is my problem.

So I have to start off again, take it through the traces and show you where I am wrong. lf the court decides that the unborn child has a right to life, I do not see where it is possible to have therapeutic abortions. How is it possible?

Mr. Jordan: Mr. Chairman, let us put it in another context: that right to life also applies to you or to me, but in each case it is qualified by the fact that the state may take it away in accordance with the principles of fundamental justice.

So they give you a fair hearing, they let you answer the case against you . . .

Mr. Chrétien: They hang you.

Mr. Jordan: . . . and then they hang you if they decide that you have not made a good case.

Mr. Chrétien: Do not be worried; l agree with you.

Mr. Jordan: And the same thing would apply to the foetus. all I am saying there is the . . .

Mr. Crombie: Clearly not. Everything you said makes sense in the context of using me as an example. it makes no sense when you use an unborn child as an example. I mean, they are not going to try an unborn child and hang it. Now, come on. I apologize, Mr. Chairman, but it is not sufficient, I submit, to use me as an example when I am trying to deal with the question of the rights or lack of rights of an unborn child.

Mr. Chrétien: The answer, Mr. Crombie, is that we are satisfied that the Parliament can legislate in that matter, and that the Charter will not prevent the authority of Parliament to enact legislation on abortion or on the death penalty. . .

An hon. Member: That is not good enough.

Mr. Chrétien: And it is because of the many considerations that we give to you Your question, in fact your preoccupation I understand, you are afraid that the Supreme Court could

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decide in that area, contrary to the wish of the parliamentarians, that is your problem.

Mr. Crombie: That is the problem.

Mr. Chrétien: And I am satisfied with the legal advice I have that Parliament would be supreme and we can legislate in the matter, but if we wanted to put the extreme extreme and it was to create some difficulties, we could, through the amending formula, change anything in the constitution. The constitution is the first law in Canada. It is a complicated process.

Mr. Crombie: Well, Mr. Chairman, I must say very briefly, then, that I am going to more strongly than before support the amendment placed by Mr. McGrath. The whole purpose of a Charter of Rights is to accept the supremacy of the Charter in relation to the Parliament in order to protect those rights, and if you are saying no, without anything further, that Parliament will be supreme, then I worry about whether or not the other items in the Charter are going to be supreme with respect to Parliament.

So, with respect, you have not only failed to convince me, I now feel more strongly in supporting the motion to ensure that Parliament deals with the matter and not a judge.

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

I see that honourable Ray Hnatyshyn would like to ask a supplementary question.

Mr. Hnatyshyn: Thank you, Mr. Chairman.

Am I correct, Mr. Chairman, in asking the Minister whether or not his position, therefore, is that the rights exist under this constitution, according to his interpretation and that of Mr. Jordan as well, except where Parliament declares otherwise?

In other words, that due process of law would involve—it strikes me, as opposed to reassuring us, now we are at the other end of the spectrum. What you are saying to us is: well, sure, the Charter of Rights sets down certain fundamental rights but Parliament is supreme. In other words, Parliament in its wisdom can. in due process of law, say that firing squads are in and so long as Parliament has declared on this, no matter how crazily in excess the penalty may be. as long as you have due process of law in terms of capital punishment, the exception then takes away any fundamental rights that anybody has?

Mr. Chrétien: The Charter gives rights to Canadians. We have the power to legislate and the court can look into our legislation. and we have some tests that apply, that have been described by my advisers, so we have the right, so there is some test.

I have the right to life, but we say that if, for example, in relation to capital punishment, we could re-establish capital punishment and it will be in some ways in controversy with the right to life, just like there is all the freedoms that exist, the freedom to circulate, some days we take it away from citizens when we put them in jail.

[Page 24]

We say that the Canadian citizen has the freedom of movement and this and that, there are all sorts of freedoms incorporated in that Charter, but there are some laws that could come sometime that say because you have committed a crime these rights are temporarily taken away from you. It is there.

An hon. Member: It is not very temporary if it is a hanging.

Mr. Chrétien: No, but we say that the state can intervene in that matter and the Supreme Court will have to oblige. It is not an absolute, we are not taking away the power of Parliament to pass laws. The court will look into that.

Mr. Hnatyshyn: I will just ask the final question, Mr. Chairman, if I may.

It seems to me that the great advantage of this proposed amendment would be to clearly set forth in the Charter the exact and precise limits upon which the legislature could deviate from the underlying and fundamental principle of right to life, the right against cruel and unusual punishment. In other words, there again would be precision in the language as opposed to the concern that it would somehow limit people’s rights in our country if I suggest that the amendment put forward so articulately by my colleague Mr. McGrath, would in fact have the opposite result. It would enhance the right, would limit the areas upon which Parliament could speak.

Mr. Chrétien: The problem is when you have a list like this one, you create the problem of: what about the other problems?

We say everyone has freedom of association. We said that, so we did not put it there, you could have a long list of things that exist and are not there, and what would be the interpretation of the court? They would say why have they done it for the death penalty and abortion and they have not done it for freedom of association and so on?

So in the drafting of that, the court will want to know why it is there, and they might use it to interpret differently the freedom of association because it is not in that list.

Any new social issue that would come up could have a different—so it would distort completely the utilization by the legislature and the courts of the Bill of Rights.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Ray Hnatyshyn.

I see that honourable members are ready for the vote.

Mr. McGrath: Mr. Chairman, I would like to conclude, if I may.

The Joint Chairman (Mr. Joyal): Yes, certainly, honourable James McGrath to conclude on the proposed amendment.

Mr. McGrath: Mr. Chairman, I will try to be brief, although I must say to you that we consider this to be a very, very important question, and we also consider the statements

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by the Minister probably to be the most important statements that have been made here in terms of the government’s interpretation of the Charter and Parliament, the impact of the Charter on Parliament.

The Minister indicates, for example—he said: I am satisfied that the right of Parliament to legislate will not be interfered with. He is satisfied. Parliament is supreme. Well, if Parliament is supreme, what about the Charter? To me, the Minister saying Parliament is supreme in terms of the concerns we raised in regard to the right to life provisions of the Charter is it very serious contradiction. I recall, Mr. Chairman, two months ago when we first started here, indeed I think it was the second day of the hearing when I raised some questions with regard to the impact of the charter on the denominational schools and on the right to education in Newfoundland, and I got the same reaction then from the Minister that my colleague, Mr. Crombie. got today: we are satisfied that the Charter will not interfere with the denominational school system in Canada or Newfoundland’s rights to denominational schools under Term 17. “It is not our intention”, the Minister said. I am sure it is not the intention of the government to have the Charter interfere with Parliament’s ultimate right to legislate in the area of capital punishment or abortion, but we are not concerned with the intentions of the Minister, we are concerned with how this will be interpreted by the courts and by subsequent governments, Mr. Chairman, and I think that should concern all of us.

We know in the case of the questions that I have raised regarding the denominational school system in Newfoundland, that the Minister finally had to change his mind and recognize the fact that the Charter could impact on the constitutional rights of Newfoundland or other provinces with regard to denominational schools.

He had to change his mind and he had to realize that that was a possibility and he brought in amendments, resulting of course in further amendments which were finally accepted last night.

Now, I say to the Minister that he has said to the Committee that he agrees that Parliament should be the ultimate authority in dealing with capital punishment and abortion. If he feels that way, and I am sure he does, why not eliminate any doubt whatsoever and accept this amendment?

We know what has happened in the United States, for example, the United States experience where the courts have interpreted the right to privacy to put in a very liberal interpretation of abortion. For example, it says here that it appears that in at least the heterosexual context the sexual relationship between consenting adults in private is considered a generally protected privacy interest. That has been the experience of the United States in the United States constitution.

Mr. Chairman, as a wise man once said: War is too important to be left to the generals. I submit to the Minister, and I think he agrees with this, that the question of the right to life or whether or not a society should or should not impose capital punishment, these two questions, Mr. Chairman, are far too

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important to be left to the courts and should be the sole jurisdiction of the legislation of the land.

We are not satisfied, Mr. Chairman, by the replies we have received from the Minister this morning, but we are satisfied that unless this amendment is enshrined in the charter then we are going to be in for a situation where down the road provisions of this charter will be interpreted with respect to the right to life and with respect to the question of capital punishment, whether or not Parliament should ultimately decide that capital punishment should be restored.

In the case of abortion, it is of general concern to many of us that in the 12 years since the abortion laws were changed we have seen the rate of abortion in Canada continually escalate to the point where last year I think, Mr. Bockstael, we had what, 65 thousand abortions in Canada and the rise in the rate of abortions has been consistent throughout.

Mr. Chairman, these are serious matters. It is five years since we abolished capital punishment, and l am not going to get into the question of whether or not we should have capital punishment. I happen to be opposed to capital punishment, I happen to be an abolitionist but there are those who feel very strongly that the rate of incrase in violent crimes and capital crimes in canada would warrant the restoration of capital punishment, and that is a question for Parliament to decide. However, Parliament could decide to restore capital punishment and the courts could interpret the constitution, the charter, as abolishing capital punishment and therein is the crux of our concern.

So, Mr. Chairman, I listened to Mr. Bockstael, l was touched by what he had to say and l was hoping he would be consistent and come out and say he is going to support this amendment. Indeed, l would like to think, Mr. Chairman, that this amendment would be free of the party whips, because if there is ever a question of conscience, it is the question of the right to life itself and that is what is at stake here and I would like to feel that all the members opposite could vote according to their consciences, because I know if they did then l know of at least several honourable gentlemen over there who would support this amendment, not only vote for it but speak in favour of it.

So l do not think we are going to change anything. We are not going to weaken the Minister’s charter, we are going to strengthen it by putting in this provision and I would appeal, Mr. Chairman, through you to my colleagues on this Committee to support this amendment.

Thank you.

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

I see that honourable members are ready for the vote.

An hon. Member: Recorded vote.

Amendment negatived. Yeas, 8; nays, 14.

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The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to move on Clause 28. It is a clause that identifies legislative powers not extended.

On Clause 28—Legislative powers not extended.

The Chair has not been informed that there is any amendment in relation to that very clause of the proposed resolution.

I repeat we are on Clause 28 and the Chair has not been informed that there is any amendment in relation with that . . .

Mr. McGrath: My colleague would have some questions for the Minister, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Certainly.

May I invite the Minister of Justice to take his seat so that a question by Honourable Ray Hnatyshyn could be addressed to him.

Honourable Ray Hnatyshyn.

Mr. Hnatyshyn: Thank you, Mr. Chairman.

This clause is a curious one to me, Firstly, a question to the Minister. What is the reason for this particular provision? I will put it in context—why is the clause not complete, if I can put it in those terms? Why does the clause not read “nothing in this charter extends or curtails the legislative powers of any body or authority”. The reason I ask the question is simply this; we have had a statement, even though i do not think it can be very serious, that somehow there is an attempt here to respect provincial rights, in fact by specific amendment to the constitution in some cases, there is an attempt to maybe enhance the rights in some areas and come to an agreement with the provinces; but I just wonder why the Minister and his advisers have decided to put in this rather negative kind of provision in the course of the charter of rights, if they are sincerely interested in gaining support from the provinces.

Mr. Tassé: Mr. Chairman, the intend of this section is to make sure that Parliament or the legislative assembly of any province would not by virtue of the charter acquire additional legislative powers. I will give you an example of this. Clause 23, if it is passed as it is, would impose some constraints on the provinces in the discharge of their responsibility or the exercise of their powers under the constitution in the provisions of educational services. We wanted to make clear that Clause 23 would not extend the powers of Parliament in that field and that because Clause 23 was in the constitution or is in the constitution, this would not mean that Parliament would have the power to enact law or enact laws for the purpose of implementing clause 23.

So that is the purpose, Mr. Hnatyshyn, of that provision, to ensure that because there are some rights that are extended to citizens under these provisions, that this should not mean that Parliament as a result has acquired powers to enact or to implement these rights. in effect too, you suggested that perhaps we should have added the word “curtailed” and in effect this would have been contrary to the intent of having a charter. Because a charter set out in this way, in effect its main purpose, its very purpose, is to constrain the powers of both Parliament and the legislative assembly in the exercise of powers that they otherwise have under the constitution.

Mr. Hnatyshyn: Thank you.

[Page 28]

Mr. Chrétien: I think that that was a very important question because it has to be clarified. Nothing in this charter gives rights to the federal Parliament. We do not acquire any new rights. The citizens have acquired some rights but not the federal government. So the balance of power in that charter has not been changed between the levels of governement, it is exactly the same. But the citizens will acquire seine rights-I think that when we come to resources, there will be a change in balance of power there because we will give more power to the provinces in the field of resources, in indirect taxation, and interprovincial trade, and that will be a change of power; it will be a devolution of power from the federal government to the provinces. But this charter does not give us any new powers at the federal Parliament, but curtails the powers of the federal Parliament and the provincial Parliament to do certain things.

The Joint Chairman (Mr. Joyal): Thank you very much, Honourable Ray Hnatyshyn. Mr. Hawkes followed by Senator Tremblay, monsieur Lapierre.

Mr. Hawkes: l have a supplementary to the line of questioning established by Mr. Hnatyshyn.

Are the courts a body or authority? The courts themselves, the Supreme Court, is that a body or authority?

Mr. Tassé: Mr. Hawkes, the key word here is, are the legislative powers—the court does not have legislative powers.

Mr. Hawkes: What about the clause of the constitution that we passed, I believe yesterday. that dealt with the remedy clause and in particular, you brought up the issue of Clause 23 and I thought in our discussion yesterday, the courts could in fact require a school board or a school district to establish a school facility which you would not consider that as a legislative function, an increase in the powers of the court? The whole remedy clause does not increase the power of the court to, in effect, legislate.

Mr. Tassé: I do not think, Mr. Chairman, it would be proper to describe these powers that the courts would have under Clause 24 as being legislative powers. The courts would adjudicate when remedies are sought under the constitution. But they would just be interpreting this under the constitution and they would ensure that its intent and spirit are carried through, but i do not think that we can say that in effect they would be, in so doing, exercising legislative powers.

Mr. Hawkes: Do the American Courts legislate?

Mr. Tassé: Oh, I think that there are some people that would argue in the loose sense, that perhaps in coming to some decision, in the interpretation, in perhaps a political sense that they may be exercising powers by refining the constitution powers that may look like the exercise of legislative powers, but our Supreme Court in Canada, for example, has been over the year interpreting the constitution. They have been saying, for example, that Parliament has the power to legislate in

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matters of radio and aeronautics. I do not think anyone would say that in a strict sense, that when they were so doing, they were exercising legislative powers. They were just adjudicating matters that were before them under the constitution.

Mr. Hawkes: But surely, when you hand them this charter, you hand them new powers and new responsibilities that will make our system very much like the American in that as you call it, loose sense of legislating powers.

Mr. Chrétien: What we are doing Mr. Hawkes, is we are giving rights to the Canadian citizens.

Mr. Hawkes: You are giving rights to the courts.

Mr. Chrétien: No, the right . . .

Mr. Hawkes: And powers to the courts. . .

Mr. Chrétien: The courts interpret the right. The rights belong to the Canadian citizens. When you go in front of the court, you say I have this right. Not only yes or no.

Mr. Hawkes: You give them the power to enforce. The courts have the powers, not the people.

Mr. Chrétien: Yes, but you know the courts, you know, are there. This is a segment of our society. They are there to interpret the law and, of course, they have to play the role. Otherwise you know, you will have a system where the citizens have no recourse to the court. And the laws, you know, that will be the arbitrary system absolutely, from the legislature.

Mr. Hawkes: In other words, you are telling me this is no restriction on that increased power on the courts; that this clause cannot be interpreted even by the courts themselves, as limiting their powers.

Mr. Tassé: I think, Mr. Chairman, the powers of the courts under the constitution will be, under that charter, is spelled out in clause 24. In clause 24 it spells out precisely what the role of the court will be under that charter, in adjudicating matters coming before it. So I am not too sure that I see the significance of your question, because even if one were to assume that in effect the courts might be covered by that clause, I do not know whether it would have any significance at all, because the role of the courts under the charter is set out in clause 24.

Mr. Hawkes: I think something that is bothering me is the frequency that we have had of “I do not know”. I think the most bothersome part of this whole exercise is that we are restricted in time, restricted in witnesses and far too often we get the response “I do not know”. I will turn it over to Senator Tremblay.

[Translation]

The Joint Chairman (Mr. Joyal): The honourable Senator Tremblay, followed by Mr. Jean Lapierre.

Senator Tremblay: Thank you, Mr. Chairman.

I imagine if there were such a thing as a constitutional catechism, this would be one of the first questions to be asked. Under the constitution, which bodies have legislative powers in the strict sense of the word?

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Mr. Chrétien: I would say the Parliament of Canada and the legislative assemblies. There are also delegations of power, but basically the two legislative authorities are the Parliament of Canada and the legislative assemblies of the provinces. Both of these parliaments sometimes delegate legislative and regulatory powers to other bodies.

Senator Tremblay: But a delegation of power does not grant legislative powers in the strict sense of the word to the bodies to which the power is delegated.

If this is the case, why do you not just say so? You claim that the charter does not extend the legislative powers of Parliament or the legislative assemblies. Why then do you use this vague wording that suggests that under the constitution, legislative bodies other than the Parliament or legislatures could have legislative powers in the strict sense of the word.

Mr. Chrétien: What we want to do, Mr. Tremblay, is cover bodies which, as you have rightly said, have delegated power. With this wording, there is no grounds for doubt. In our mind anyway, it is a way of avoiding a situation where someone could claim that his legislative authority is independent of parliament or an assembly. This eliminates any possibility of such an argument.

You may feel that this is not necessary, because in your mind, and in mine, it is clear. But by using this wording, we feel we are preventing people from claiming that they are not covered because they are not a parliament or legislative assembly.

Senator Tremblay: A supplementary, Mr. Minister. I think we should clarify this because I think that a text that creates doubt in the mind of the average reader, instead of eliminating doubt, is badly worded.

The judges are the ones who will be concerned about this type of ambiguity, and not the people who claim to have legislative authority because they have delegated power.

I think that judges are generally quite well informed on this and that there would be no doubt in their minds. No judge would allow a body other than the Parliament or a legislature to make this type of claim.

This brings me back to my suggestion. To put it clearly, there are two types of institutions which have legislative powers in the strict sense of the word: the Parliament and the Legislative Assemblies. Name them and the problem is solved.

Mr. Chrétien: This charter will be in the Canadian Constitution for a long, long time. Supposing, although it is improbable at this time, that for sociological or other reasons, the federal and provincial governments reach an agreement in

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some area giving constitutional legislative authority to the municipalities. Section 28 as it is now drafted would then be necessary.

Senator Tremblay: Absolutely not, Mr. Minister. Section 28 would be automatically amended on agreement. The agreement mechanism would apply.

Mr. Chrétien: I am giving you two arguments. I am saying that it is not a fundamental issue because we agree that there are two legislative authorities. It is a question of the way the clause is worded. I am looking at the English version. In any case, the clause is broader than ‘what you are suggesting. You are suggesting that we refer specifically to the legislative powers of the Parliament of Canada and the Legislative Assemblies of the provinces and confirm that there are only two orders of government.

However, we want to prevent bodies which have had legislative power for a long time, or people, from going before the courts and claiming that they are not bound by the obligations provided for in the charter. This simply clarifies things.

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

Senator Tremblay: I have something to add.

You want to cover more, but there is nothing more; you want to cover something that does not exist.

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

Mr. Jean Lapierre, followed by the Honourable David Crombie.

Mr. Lapierre: Thank you, Mr. Chairman.

With respect to clause 28, Mr. Minister, you are aware, as I am, that there is a huge publicity campaign going on in Quebec, of which Senator Tremblay is one of the stars. The slogan they are using there is “Faut pas se faire avoir”, Don’t let them sell you a bill of goods. You know, Senator, that we are very big on impressions and this creates the impression that the Quebec legislature is being sold a bill of goods, that the French element in Quebec is being eroded, that federal centralization is taking powers away from the Quebec legislature, that the bad guys in Ottawa are putting a. yoke on the National Assembly and that French culture is being endangered.

There was even talk of the use of force by Ottawa and some priest was claiming that Quebec was being culturally raped.

I think, Mr. Minister, that clause 28 is quite clear on this. The federal government does not itend to do a striptease for the National Assembly.

This, Mr. Senator, is the type of impression created by the advertising campaign in which you are particpating and I

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think that it is false. I should add that the campaign has not been very successful, but I would like to have more specific information on it, because they are trying to make people believe that we are in the process of. . .

The Joint Chairman (Mr. Joyal): Senator Tremlay, on a point of order.

Senator Tremblay: It may even be a question of privilege. Mr. Lapierre has referred to an advertising campaign in which I was supposedly involved and has clearly implied that I actively and willingly participated in the campaign.

I think you will have to be a bit more careful about what he said. I am unaware of and have not seen the advertising that you are referring to. It is quite possible that my name is being used, but I have not been witness to it and would like to make it clear that I had nothing to do with it.

I would like him to be more specific.

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay, for your point of order. I was listening very carefully to what Mr. Lapierre was saying and I would like to repeat what I said to the honourable members of the committee yesterday and at previous meetings. When honourable members intervene on an amendment, a sub-amedment or a provision of the proposed resolution, they should stick to the content and not make speeches or present arguments that are not strictly related to the content of the provision we are debating. As the honourable members can see for themselves, we are getting into a debate and we are not at the debate stage. We are on clause by clause.

I would ask Mr. Lapierre to take this into account.

Mr. Lapierre: I shall, Mr. Chairman, and I would simply like to say that Section 28 does not extend the legislative powers of the federal government at the expense of the provinces and particularly at the expense of Quebec.

As for the advertising, Mr. Senator, it is sponsored by the Quebec government and is available almost everywhere.

Senator Tremblay: Unfortunately, I have not seen it.

Mr. Lapierre: I will send you a copy.

Senator Tremblay: Given the nature of the advertising and what you have said about it, I think I will ask for more specific information than you have provided.

Mr. Lapierre: I will send you a copy.

[Text]

Senator Lucier: Mr. Chairman, on a point of order.

I wonder if, Mr. Chairman, if we are all going to follow the rules or if none of us are going to follow the rules around here. It seems to me that with the long answers and the long questions we are spending again any length of time on a clause with no amendments, with two lines in it.

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If we are going to continue to do this I hope that when we get to the next Monday or Tuesday that nobody is saying that we are running short of time, Mr. Chairman.

An hon. Member: Hear, hear!

The Joint Chairman (Mr. Joyal): Well, that is the very point. I have to invite honourable members that when they speak more than the period of time, of course, it tends to develop into many kinds of arguments, and I have had a close look to the time allocation this morning, and I must say that there is almost only one hon. member that has abided by the rules. The Chair has been very upset to realize that, and especially that some members, when they speak of course more than the time allocation that has been accepted, develop arguments that raise a debate, and at that very moment when there is an allusion to another hon. member, there is a 99 per cent chance that the other member whose name has been mentioned will come back . . .

An hon. Member: Hear, hear!

The Joint Chairman (Mr. Joyal): . . . and then we are in an endless debate. . .

Mr. Hnatyshyn: And rightly.

The Joint Chairman (Mr. Joyal): And sometimes rightly, and that in my mind has to be reminded to all honourable members. and I would like to remind honourable members that when they speak, the essence of the debate on the clause-by-clause is to state the reasons why they should vote against or why they should vote for the amendment. And that should be the conclusion of almost all the interventions, and that I think is the essence of the rules, and if there is a question it should be a question to understand the meaning on what the honourable members are asked to vote, and not to open a general debate on the clause that will call for in the discussion all the other sections that have been voted already, and that in my mind is very clear, and I use the opportunity to remind you of that very rule, because that is the essence of the standing orders of the House of Commons and I am quite sure that all honourable members know this, but at one point they might forget it.

So I would like to invite now hon. David Crombie.

Mr. Crombie: Thank you, Mr. Chairman, and having considered your point. Mr. Chairman, quite well made, I would like to indicate to the Chair that, I am not sure about my colleagues, but I am not going to support Clause 28 because it is simply not true, and I would like to indicate through you, Mr. Chairman, why I think it is not true.

It says here that nothing in this Charter extends the legislative powers of any body or authority.

I listened very carefully to the Minister and to the law officers of the Crown and I must be walking through some kind of wonderland. We are not touching—we should get back to spaceship Earth, because if there is anything that this resolution is doing, it is changing the legislative powers of a good number of bodies in this federal system of ours.

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The assumption is somehow that legislative only relates to legislative bodies, but the courts have legislative powers and they are being increased by this. There is no doubt about that. We should not try to fool people, Mr. Chairman. Expert witness after expert witness that came before us, either as expert witnesses or people in the field, whether they supported the charter of rights or did not support the charter of rights, all said it was a shift of power to the courts.

Now, if we do not say that, people will not know that we know that, that we know it to be true. it is a shift of power to the courts.

The definition of legislative has nothing to do with whether or not it is a legislature.

From the legal dictionary, Black’s Law Dictionary legislative actions, not buildings or organizations. The word legislative which appears in clause 28, legislative means action which relate to subjects of permanent or general character are legislative.

Now the legislative powers of the courts are clearly increasing. and I do not think we should try and tell people they are not.

Secondly, and I might say, Mr. Chairman, it has shifted significantly.

May I also quote to you Mr. Cohen wrote an excellent essay called the “The Law and Social Order” on the bill of rights theory, He talked about the American experience after some considerable time. He said that over a century of judicature it has left such phrases as “due process”, “public purposes”, “equal protection of the laws”, “just compensation”, et cetera, still so vague that we may well ask are they not really moral and political maxims of the kind that had better be left to the enforcement of legislative process controlled by enlightened public opinion.

Our liberty loving nations have put bills of rights into the constitutions but they have regarded them as guides to the legislatures, They have as much faith in legislatures as we and the Americans have in our courts. He goes on to point out that the effect of the bill of rights was clearly understood to increase the power of the courts.

Mr. Chairman, the power of that court should also be understood and not mitigated by simply saying that, well, heavens, if we do not like it, we could always pass another law. It is not true. A great quote from Charles Evans Hughes who was Chief Justice of the Supreme Court in the United States in 1930, and he said, quote:

The constitution is what the judges say it is.

So do not misunderstand—I feel a little wary of the law officers of the Crown and the Minister constantly saying,

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“Gee, folks, do not get excited, we are not increasing anybody’s power.” You are not just increasing the power and rights of the courts, you are increasing the power of the judges to determine social and political policy in this country, and let us not try and undersell that point.

Finally, Mr. Chairman, if you are interested at all in how that works out in practicality, let me read this to you. It is one paragraph.

In dealing with the question of what happens to individual rights with respect to privacy and abortion in relation to the powers of the courts. This is what happens in the United States today, that is to say in our time.

For most of a woman’s pregnancy, abortion is considered a protected privacy interest. In the first trimester or the first three months the State may impose restrictions upon abortion, such as conditioning the abortion upon the consent of a spouse, or a parent in the case of an unmarried minor female.

In the second trimester, in the next three months, only state laws that are merely regulatory and directly to promote the help of the mother are tenable.

Finally, only in the last three months, the abortions are restricted by the state, but never when in the opinion of an appropriate medical judgement, the mother’s life or health is thought to be in jeopardy.

Now, where do you stand on the issue, on one side or another. Mr. Chairman, to try and mislead people not intentionally I am sure, but to mislead people that the courts are not going to have, and the judges are not going to have exceptionally more power in this country, is not doing the Canadian public a very good service.

I am going to oppose Clause 28, because it is simply not true.

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

Honourable Senator Austin.

Senator Austin: I am interested in having the question put, but not interested in leaving the question where Mr. Crombie has just left it.

Let us be clear, Mr. Crombie, that Clause 28 refers to the legislative powers of any body with legislative powers.

The courts do not in the ordinary sense have legislative powers. There is lots of legal theory, and l have been through it all in a professional way, that talks about the quasi-legislative authority of the courts. The courts do make law by interpreting legal principles; the legislature establishes those principles, the courts apply them, and in so doing they are not always given problems that are within all the corners of the specific thoughts of the legislature at any time.

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However, to take Mr. Hawkes’ argument which, frankly, I had no trouble not following, if one of the bodies referred to here is the courts, if you argue that a court has legislative power in the sense of Clause 28, which of course it does not, then you would have to interpret Clause 28 as saying the courts did not have their legislative power extended either, and that would not trouble me in the slightest.

Finally, I want to tell you, Mr. Crombie, that you made an excellent argument here earlier this week with respect to the Sixth Amendment of the United States Constitution, and you quoted with approval the decision of the United States Supreme Court to extend the Bill of Rights to the States. Also, I agreed with you entirely and I felt that you had grasped the essence of the process that is before us, and now I find you arguing 180 degrees differently and you are confusing me.

However, in any event, I will end by saying that, certainly, we are introducing laws in this Charter which the courts will have to interpret, and that is no different from the Anglo-American system of law in every way. We have removed some question from the ambit of legislatures; we are not extending the powers of legislatures here, of course we are not, we are limiting them and we are limiting them by asking the courts to make some decisions about rights in this country and, as I said before, you approved of that process in terms of the United States Constitution, so I found your arguments here a little hard to square with your previous position which I agreed with.

Thank you, Mr. Chairman.

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

Mr. Crombie: I would like to ask the honourable Senator a question, if I could.

The Joint Chairman (Mr. Joyal): Well, I am sorry, Mr. Crombie, but you have spoken more than eleven minutes on that issue. I was just checking with our Joint Chairman on the use of time . . .

Mr. Crombie: I will write him a note, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you. I say that with great deference to all the honourable members. I think that when an honourable member is intervening in a debate and putting the very reason why he will vote for or against, I think it comes very clear and helps other honourable members to make up their mind; but when there is a general debate over the clause it does not help other members to make up their mind and that is why the sense of the rule is to address the content of the proposed amendment or subamendment or the clause and try and convince honourable members that on is right by saying: I will vote for, I will vote against, and these are the reasons.

Unless an honourable member has a question of clarity to ask before he expresses those reasons, because we are now at the time where we have to vote, this is no longer a general

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questioning session where one tries to go over the general principles.

Each member has to vote at the end of that period of time.

So that is why I think that honourable members are invited to keep their interventions to the very essence of the proposed amendment. Thank you.

So I see that honourable members are ready to vote on Clause 28.

Clause 28, agreed to on division.

The Joint Chairman (Mr. Joyal): I would like, then, to invite the honourable members to take the next amendment, it is an amendment identified CP-13, new clause following Clause 28, page 8. It is an amendment moved by the Conservative Party. I repeat the number of the amendment, CP-13, new clause following Clause 28.

I would like to invite honourable Ray Hnatyshyn to introduce the amendment in the usual way.

M. Hnatyshyn: Thank you, Mr. Chairman.

I would move that the proposed constitution act, 1980, be amended by (a) adding thereto immediately after line 24 on page 8 the following heading and clause:

Obligation to Examine Regulations and Bills

Duties of Minister of Justice

29. (1) The Minister of Justice shall in accordance with such regulations as may be prescribed by the Governor General in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration and every Bill introduced in or presented to the House of Commons, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the House of Commons at the first convenient opportunity

Duties of Attorney General of Province

(2) The Attorney General of a province shall, in accordance with such regulations as may be prescribed by the Lieutenant Governor in Council of the province, examine every proposed regulation in draft form and every Bill introduced in or presented to the legislative assembly of the province in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the legislative assembly at the first convenient opportunity.

; and (b) renumbering the subsequent clauses accordingly.

An annotation will be made in the course of those amendments, Clause 29(1) will be indicated as duties of Minister of Justice, and Clause 29(2), duties of Attorney General of the province.

Mr. Chairman, I think this is an appropriate . . .

The Joint Chairman (Mr. Joyal): I would like to invite honourable Senator Tremblay.

[Translation]

Honourable Senator Tremblay.

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Senator Tremblay: It is moved by the Honourable Hnatyshyn

That the proposed constitution act, 1980 be amended by:

(a) adding thereto immediately after line 24 on page 8 of the following heading and clause:

“Obligation to Examine Regulations and Bills

29(1) The Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor General in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration and every bill introduced in or presented to the House of Commons, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the House of Commons at the first convenient opportunity.

(2) The Attorney General of a province shall, in accordance with such regulations as may be prescribed by the Lieutenant Governor in Council of the province, examine every proposed regulation in draft form and every bill introduced in or presented to the legislative assembly of the province in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Charter and shall report any such inconsistency to the legislative assembly at the first convenient opportunity”; and

(b) renumbering the subsequent clauses accordingly.

[Text]

The Joint Chairman (Mr. Joyal): Merci, Senator Tremblay. I would like to invite Mr. Hnatyshyn to introduce the amendment.

Mr. Hnatyshyn: Merci, Senator Tremblay.

I think the intent here is quite clear from the wording but I simply want to say and attribute the source of this particular provision. I think all of us who have been following this particular Committee and the topic will recognize the provision as being one that is contained in the Diefenbaker Bill of Rights.

The purpose I think is one which would have very little argument within the Committee and I think it follows on the last remarks made by Senator Austin when he referred to the relationship between the courts, the legislature and the fact that the courts will be in fact interpreting legislation passed by the House of Commons in the context of the bill of rights, the charter of rights that we are now considering.

I have had some experience, Mr. Chairman, in terms of our present review, our present system of review of regulations. A very necessary committee has been established in this House, it is recognized as being required to review the mountains of regulations that are enacted by ordering council, by departments, of the effect of law on the average citizen and very much affect the day to day activity of citizens in our country.

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The Joint Committee on Regulations and other Statutory instruments has the function now of reviewing regulations to make sure that they do not offend the principles of natural justice and in fact there will be an opportunity for us to review these regulations which have no other method except through the courts of being reviewed to ensure that there is a minimum reference to the judiciary to save people in our country the expense of going to court in order to protect their rights against arbitrary actions on the part of government.

We know that in this particular context a provision, therefore, should be made which would allow some mechanism in the hands of the Minister of Justice on the federal side, possibly the Attorney General, the equivalent portfolio on the provincial side, to have the obligation of reviewing not only the laws that are passed but also of reviewing the regulations that are promulgated under the various laws to assure and report to the House that assurance that those laws and those regulations are not offensive to the very principles that we are now considering.

So I think that it is a sensible, workmanlike amendment that will in fact, in the event we get this charter of rights or indeed the total constitutional provision passed in whatever form it finally does end up, it will be the kind of provision, the kind of scrutiny here will allow the constitution to be enhanced rather than deprecated.

So I simply ask the members of this Committee to look very seriously, it is an ‘amendment which deals with, I suggest, a procedural question but there is an element of substance here which I think is very important to the proper functioning, to the protection of the individual citizen so that they will not be required, as their only source of relief in the event they feel there is a law which offends the principles of the constitution, to have to resort to expensive and lengthy legal proceedings to protect their rights This will be an additional protection to the citizen which will oblige the Minister to review, to keep the House of Commons and Senate informed on the federal side and the legislatures on the provincial side as to the legal opinion with respect to all enactments, all regulations which are promulgated by governments.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Ray Hnatyshyn.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, I just wanted to briefly associate myself with the remarks of my distinguished colleague from Saskatoon West as a fellow member of the Standing Joint Committee on regulations and statutory instruments, and to urge the government to accept this very reasonable amendment which merely requires that before legislation or regualtions are given effect that there should be some scrutiny as there is presently, it is my understanding, of similar regulations and statutory instruments and acts under the Diefenbaker Bill of Rights.

So the only change would be a scrutiny of this at the provincial level and I am sure that in the spirit of cooperative federalism which exists in this country. that the provinces would be quite prepared to scrutinize their bills and regula-

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tions to ensure that they meet the minimum requirements of this particular proposal.

So, Mr. Chairman, I am pleased to support this proposal and urge the government to accept it.

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

The honourable Minister of Justice.

Mr. Chrétien: Mr. Chairman, I find it funny that Mr. Hnatyshyn, this is just a joke I am making, would like us to enshrine in the constitution Michael Pitfield.

However, I think it is not necessary because we have this obligation anyway under the bill of rights, and this applied to the federal government and we are forced to do it and we intend to do it and so on, so it is unnecessary for the federal government and it is not appropriate. and administrative obligation of that nature, it is not necessary to have it in the constitution.

You cannot have all, as I said to Mr. Robinson for a full week, take a catalogue of all the virtues there are in the world and try to have it in the Canadian constitution, it makes no sense. This is a constitution.

And so that is an administrative obligation. we are bound by it because the bill of rights of Mr. Diefenbaker still apply to us so we have to do it, no problem.

Clause 2, coming from the Tories, just annoyed me because they are so inconsistent all the time. To say that I have to impose an administrative obligation on the provinces, it makes me laugh a bit because it is against the whole philosophy.

The first one, we are obligated, it is not necessary. it is in the bill of rights and we intend to do it and we will do it, no problem. It is a duplication, it is adding to that, we might create even more problems for our British friends in order to explain that to them because they will…

An hon. Member: You will create problems all right.

Mr. Chrétien: But I do not think they will even ask, so that is why, that is an illustration of why the people say it is going to be done in England. It is not going to be done in England, it is an amendment proposed by the Tories in Canada . . .

The Joint Chairman (Mr. Joyal): Well, I am sorry . . .

Mr. Chrétien: There are dozens and dozens and dozens of them made in Canada all the way.

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Minister . . .

Mr. Chrétien: We are not accepting it.

The Joint Chairman (Mr. Joyal): I will invite the honourable Minister of Justice, and I will repeat what I said earlier, the Minister of Justice, for instance, is referring to where that charter will finally be voted on and that is not under question in the proposed amendment, and it is an illustration of argument that raises other interventions and the Chair, of course, has to recognize that other members from the Conservative

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Party would like to answer to that and then we open another debate.

That is exactly what I said a moment ago, and I would invite all honourable members at this point to try to the best of their ability to respect that invitation that the Chair extends to them because otherwise we will never move on any of the other amendments or clause that we have under discussion.

Mr. Robinson.

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

The Joint Chairman (Mr. Joyal): Honourable Ray Hnatyshyn on a point of order.

Mr. Hnatyshyn: I fully subscribe to your ruling and I think it is really destructive of our consideration for the Minister or any member on the government side to start attributing motives with respect to any amendment.

We are never going to get anywhere through this thing at all if we are going to start this kind of political gamesmanship, and I am the last one who believes in political gamesmanship as everyone on this Committee knows.

I know the Minister did not intentionally mislead or want to mislead the Committee but he understands we are considering the provisions of this charter of rights, we made our position quite clear that we believe that the consensus should be obtained, we are working on the bill, the package that has been brought forward always with the understanding that this bill, without the consensus of the provinces and the regions is simply not an effective document and the Minister…

The Joint Chairman (Mr. Joyal): Well, Mr. Hnatyshyn …

Some hon. Members: Order. Order.

The Joint Chairman (Mr. Joyal): Mr. Hnatyshyn, you are essentially falling in the trap I have attempted to prevent the other honourable members from falling into.

An hon. Member: Shame, shame.

Mr. Corbin: Double shame.

The Joint Chairman (Mr. Joyal): I think that I have to say for the discharge of Mr. Robinson, who has had an exemplary attitude this morning, that seeing all that, when the Chair invites him to address himself to this question he will follow the bad example that the elder would have had and the Chair will have to call him back and Mr. Robinson will be in a very difficult situation.

So I would like to ask for the co-operation of all the honourable members so that we give a good example to Mr. Robinson.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, I am not quite sure how Mr. Hnatyshyn feels about being referred to as the elder. I will refrain from political gamesmanship as Mr. Hnatyshyn did in my question, Mr. Chairman, but I would like to ask the Minister the following question:

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The Minister indicated that with respect to the federal government this would be duplicating an obligation which already exists; is that correct?

Mr. Chrétien: We have this obligation under the bill of rights.

Mr. Robinson: Well, let me ask you this, Mr. Minister: where is there any obligation under the bill of rights to scrutinize statutes to ensure that there is no discrimination on the statutes on the basis of physical or mental handicap?

Mr. Chrétien: With this change in the bill of rights we will parallell in our legislation exactly that provision in the Diefenbaker Bill of Rights, if I may use that expression.

Mr. Robinson: Are you now saying, Mr. Minister, you are going to amend the Diefenbaker Bill of Rights to make reference to the areas that are not covered?

Mr. Chrétien: We will need some amendments because of some clarification and I will ask Mr. Tassé to explain why.

Mr. Robinson: Just to conclude my questioning, you do concede, though, Mr. Minister, that your earlier response was not accurate and that in fact with respect to. . .

Mr. Chrétien: It was not precise.

Mr. Robinson: It was not precise, it was also not accurate, but with respect to physical and mental disability with respect to trial by jury, for example, with respect to a number of the other contents of this particular charter which are not contained in the Diefenbaker Bill of Rights, that there is no scrutiny whatsoever now and you are saying that you are prepared to amend the existing legislation to ensure that that scrutiny takes place?

Mr. Chrétien: Yes.

Mr. Robinson: Thank you.

The Joint Chairman (Mr. Joyal): Well, I think that it does answer very clearly your question, Mr. Robinson.

Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman.

I have a couple of questions for the Minister. I was not too sure whether I heard him correctly or not but I guess they are supplementaries to the points expressed by Mr. Hnatyshyn and Mr. Robinson, but the Minister indicates that the reason he would urge government members to vote against this clause is that he considers it to be an obligation which is already met, that is the thrust of his argument, I think, that this kind of procedure would occur normally and naturally under other provisions.

Can I establish that?

Mr. Chrétien: I said that there is this provision under the Diefenbaker Bill of Rights where the idea has been taken, will be adopted with the new charter in the amendments that we will have to provide in the charter of rights that we call the Diefenbaker Charter, because some aspects of the Diefenbaker Charter will still be, or you do not find in that charter, there will still be some obligation on the federal government. There

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will be amendments, and I said that in doing so what is required here will be adjusted accordingly in the amendment we will be providing.

Mr. Hawkes: Following that same philosophy, Mr. Minister, I guess I see an opportunity to demonstrate because one of the concerns that we have had consistently on this side of the table is that we have not done what this amendment suggests we should do in relationship to the legislation and the regulations which are currently on the books, and we have had several “do not know” answers about the need to change that. We have requested an opportunity to question other ministers about their area of jurisdiction and the impact of this charter on the legislation and the regulations which exist.

I am just wondering, in keeping with the Ministers philosophy, if he might commit to this Committee that once this bill is reintroduced in the House, that he might table, for the edification of all members of Parliament, the existing legislation and regulations which will have to be amended because they run counter to the Constitution Act, 1980.

Could we have that kind of commitment that we will have that in the House of Commons on February 6 or the Monday immediately following?

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

Mr. Tassé: We do not think, Mr. Chairman, that it would be physically possible to provide that kind of undertaking. As we go on we will see in effect which legislatin is affected.

In the course of the testimony, our own and the Minister’s, we have indicated that a number of statutes would have to be looked at but we do not have a complete list of these statutes, and on some of these things it is very judgmental as to exactly what the impact of this would be and we will have to wait and see how the charter itself and how these rights are defined before we can make a judgment as to the impact it would have on the legislation.

Mr. Hawkes: Do you not feel it is very important for parliamentarians making this kind of important decision to know what the impact is going to be on existing legislation and regulations, that we cannot make a solid decision if we do not have at least some sense of that?

Mr. Tassé: I do not want to be impertinent but it seems to me that with the discussion that there has been and the indications that have been given as to what we feel is the meaning of these words that there should emerge some concept as to the kind of impact it would have on legislation.

Some hon. Members: Hear, hear.

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

Honourable Ray Hnatyshyn to conclude on the proposed amendment.

Mr. Hnatyshyn: Thank you, Mr. Chairman. I am naturally disappointed that the Minister has arbitrarily decided against supporting this. I did not think it was a contentious matter. I

[Page 44]

thought it was one that would improve the operation of the constitutional proposal. I thought it was one that was necessary for the very simple reason that, as has been pointed out this morning and on previous occasions, we are now in the process of vesting very substantial power in the courts to deal with review of all legislation, all regulations, to see whether in fact they are consistent with the charter of rights, by way of example.

As a lawyer I have some idea as to what kind of expense and what kind of trouble a citizen is put to if certain constitutional rights are offended. What we are doing, and what we are trying to do by this amendment is a very simple and I think a very helpful suggestion that before it gets to the point of having these regulations promulgated by the Governor-in-Council, there would be an obligation on the Department of Justice to review the various regulations to insure that the individual citizen would not be obliged to engage legal counsel, to pay the cost of legal counsel, to get involved with long and tedious judicial proceedings.

Certainly each and everyone of us must be sympathetic to that particular objective. So I think the Minister himself now has to acknowledge that his response that somehow there was some obligation on the Department of Justice to review these things under the Diefenbaker Bill of Rights is not correct and is not serious.

I just want to say this, that one of the difficulties that the Diefenbaker Bill of Rights ran into of course was the fact that the courts gave very narrow interpretation as to the application of that bill.

This is a different proposition altogether. This is a part of our constitution. The courts will not have the constraints with respect to dealing with these matters. They are going to be involved very substantially in the whole process of judicial review. We are going to give the courts a very increased work load in terms of regulations, laws of every nature and description that are going to be passed by Parliament or by the government.

I simply think that it is unfortunate that the Minister just arbitrarily says that it is not acceptable because it somehow is being done in another way, or did l sense the Minister to suggest that it might increase the workload of the department. l do not know what the reason is, but certainly the interest of the individual citizen has to be paramount in the minds of the Committee.

I am very sorry, l hope that the members will support this very straightforward, non-political, non-partisan kind of suggestion, constructive suggestion, for the better operation of this bill which has a lot of question marks against it now.

Let us not cause ourselves difficulty. Let us not cause the average citizen more difficulty than he should have with respect to having to defend his rights through expensive, lengthy legal proceedings.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, the Honourable Ray Hnatyshyn.

[Page 45]

The Chair will then call the vote on the proposed amendment. l have been requested a recorded vote by Mr. Hawkes on that very amendment.

Amendment negatived. Yeas, 7; nays, 14.

On Clause 29—Application of Charter

The Joint Chairman (Mr. Joyal): I would invite honourable members to move then on Clause 29, and on Clause 29 the Chair has been informed on one amendment. It is the amendment identified revised N-33, Clause 29, page 8, and I would like to inform our viewers that Clause 29 is entitled, application of charter, l’application de la charte, and I would like to invite Mr. Nystrom to move the amendment in the usual way.

Mr. Nystrom.

Mr. Nystrom: Thank you very much, Mr. Chairman. I want to move that Clause 29 of the proposed constitution act, 1980 be amended by striking out line 36 and 37 on page 8 and substituting the following:

tion 15, insofar as it relates to age and physical and mental disability, shall not have application until one year after this Act, except Part V, comes

Il est proposé

Que l’article 29 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la ligne 34, page 8, de ce qui suit:

«ticle 15, en ce qui concerne l’âge et les déficiences physiques et mentales, ne s’appliquent qu’un an après»

The reason for this, Mr. Chairman, very, very briefly, is that we feel that instead of waiting for three years before Clause 15 comes into effect after the constitution act of course becomes law, that all things that are referred to in section 16 should take effect immediately upon the proclamation of course of the resolution.

The only exception to that would be age and physical and mental disability. The reason for that, Mr. Chairman, is that these are recent additions and they may cause a little bit of concern to the provinces in terms of making sure some of the provincial law, provincial acts, are in accordance with what is in the charter of rights and we think that we should give a year for the provinces to do that.

For the other things that are mentioned in Section 15 of the resolution, they are all part of the covenant, they are all part of what is guiding the national government and they are all part of what guides the provinces of this country; so we believe that they do not need three years for those things. We believe they do not even need a year for those things, but when the new constitution takes effect that they then should be able to make sure that their own provincial laws coincide with the wishes of the Charter of rights.

Because of the recent additions of age and mental and physical disabilities clauses to the charter we feel that we should give them one year. There is no need to elaborate, Mr. Chairman, I think it is pretty well straightforward.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Madame Campbell, do you have a question?

[Page 46]

Miss Campbell: I have a question on the amendment to Mr. Nystrom. Why did you exclude sex in that?

Mr. Nystrom: Why did we exclude sex in that? Because we believe that it would not be a major problem for the provinces, that the provincial laws could coincide quite easily with the intents and the wishes of the Charter of Rights, that they have enough notice, that there would not be any complications there.

Miss Campbell: Sex, under this, Clause 15(1) has to wait three years to come into force. You are excluding, l take it from your amendment, age and physical and mental disability and you are saying that this should be enforced in a year.

Mr. Nystrom: Yes, we do not refer to the other things in Clause 15. We are not referring to race, national or ethnic origin, colour and sex, but our indications are that there could be some problems in some of the provinces with age. You have different age requirements in different provinces. It may take a whiIe—all kinds of social policies. I am thinking of very simple things like the minimum drinking age, drivers licences, all kinds of things where the age requirement is different from province to province.

We would like to see Clause 15, equality of rights, take effect immediately but if there are legitimate problems in the provinces, and what we get is that there may be with age, we give them a year to make sure that they have a chance in the legislature to have their laws coincide with the intent of the charter.

Miss Campbell: I just have one more question now on the amendment. I do not accept your response on the sex. We have to wait three years and the provinces and everybody has said it should be there right away.

If you go to Section 29, you have to wait three years for section 15 and you are asking us to only have to wait one year. Is that what you are asking?

Mr. Nystrom: No, no, I am sorry Miss Campbell misunderstands this. Everything but age and physical and mental disability would take effect immediately upon proclamation of the constitution act of Canada. In other words it takes effect immediately.

Miss Campbell: And the other would have one year.

Mr. Nystrom: Have one year. The reason for that is we have had all kinds of indications from the provinces that there might be some problems in terms of tailoring their acts and their legislation to the intent of the charter.—I do not think that is necessarily sex.

Miss Campbell: You do not want to wait three years.

Mr. Nystrom: We do not want to wait three years for anything except those two items.

Miss Campbell: And that is for one year.

[Page 47]

Mr. Nystrom: And that is for one year.

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

Mr. Hawkes: followed by Honourable David Crombie and Senator Tremblay.

Senator Tremblay: I withdraw because I think l got the answer. it was a question of clarification.

The Joint Chairman (Mr. Joyal): Merci, Senator Tremblay. Mr. Hawkes.

Mr. Hawkes: A couple of, l hope, quick questions to the Minister. One of the groups that appeared before us was the insurance industry. Age and sex are two of the discriminants that are used in setting rate policy and benefit policy. They asked us to consider the impact of the Charter on their industry. I am wondering if the Minister could give us some indication of the advice he is getting, of the impact of Clause 15 on that industry.

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

Mr. Jordan: Mr. Chairman, Mr. Hawkes, I think the response is basically this, that the insurance industry in setting the premium rates for insurance or for pensions and so on are not doing that pursuant to laws which tell them that they must do it that way. They are engaged in making private contracts between themselves and people who are seeking insurance or pension coverage.

Our Charter does not, as I think we discussed yesterday, address itself to discrimination in what one might call the private sector, so it would be only to the extent that there are laws on the books such as the federal pension laws which deal with age or sex or one of those bases, actuarial tables, as a means of establishing different rates where one would have to examine them to see if that is a reasonable or demonstrably justifiable basis of discrimination.

Mr. Hawkes: Could the Minister of Justice indicate whether those things such as pensions and family allowance have been examined in light of the Charter. Do we need a period of time? The NDP is proposing that for instance, the instant this Charter is passed that sex is a prohibited grounds of discrimination. Will that affect the family allowance system or any aspect of our pension system and have you done a thorough investigation to give us some assurance of what is going to happen there?

Mr. Chrétien: We will have to review all our legislation as well. We cannot accept this amendment because the standards that we are setting here will force us to review a lot of our legislation and regulations and so on. And it is a matter of pure practicality. Parliament is operating and it will take a long time and it is a very difficult task. In fact, when Premier Blakeney came in front of this Committee one of his complaints, his testimony on page 16, was that three years was not enough and, you know, to get the provinces’ approval it was going to take a hell of a long time, with the complexities of all of our laws and the complexities of all of the laws of all the

[Page 48]

other legislatures we felt that it was reasonable to give three years; but for us we do think that we will be, even if we do not have the time to pass the legislation to amend our own legislation, we are morally bound by this commitment whenever we will be faced with the problem we will apply that standard. But sometimes it cannot be done in changing—you cannot change legislation instantly.

How many bills have we passed so far since October, very, very few. This will imply a lot of legislation work, so my staff advises me that the next three years will be a fantastic load for us, but when we are in the process of our legislation and so on, we will implement all those principles in our administration. But when it will be calling for changes in legislation, we have to wait for the legislative time, so this is that practical problem.

We say that the principles that are adopted in this Charter will bind us but we need the time to change the legislation.

Mr. Hawkes: Could I just summarize then . . .

The Joint Chairman (Mr. Joyal): Your last question, Mr. Hawkes.

Mr. Hawkes: The Minister is asking us to vote against the amendment because the government, once this Charter is passed, will begin looking at current legislation to see what needs to be changed. You are not going to do it before; you are going to do it after; and you are telling us you are going to need three years to straighten out the world and that is what you want us to vote for, the retention of your three years, and not go along with the NDP.

Mr. Chrétien: That is exactly what I am asking you to do because l do think, you know, you say we cannot give you the enumeration of all the bills and the regulations and so on that might be affected. Yes, we cannot. But what we are voting is. we are voting for a principle, for a right, and there will be consequences, and we try to anticipate as many of them and we have been debating that for weeks and weeks, but now we will have la tâche monastique, a review of every aspect of every legislation, and that will take a lot of discussions and drafting problems and this and that.

So, it is very easy to say like that, but we cannot do that. If we were to have an agreement that it will pass automatically without debate, any amendments that have to be done, I do not know of any—I do not expect the NDP or—perhaps the NDP will accept that, Mr. Robinson is not here, but some like to talk.

Mr. Nystrom: I have noticed that, Mr. Minister.

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

Mr. Crombie: I had a question to the Minister but l think he has answered it, Mr. Chairman.

I would simply like to say that everyone would like to have the implementation as soon as possible, that is the burden of the amendment from Mr. Nystrom, but I think anyone who knows the problems of implementation would recognize that the time period requested by the government is required.

[Page 49]

We will be opposing the amendment from the New Democratic Party and supporting the government. Go home and light a few candles.

[Translation]

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

Senator Tremblay: I would simply like to say along the remarks you made earlier that I am in total agreement with my colleague Mr. Crombie. The three years required to put things in order appear to me to be a minimum. I am against the amendment and eventually for the main article for another reason, because if it affects the provincial jurisdiction, it would appear more and more likely that effectively the charter of rights will not be sent to London but rather to the provinces as soon as it is out of Parliament, judging by the news we are receiving.

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

Mr. Nystrom, would you like to conclude on the proposed amendment?

[Text]

Mr. Nystrom: Just in closing, Mr. Chairman, I have a hunch I am on the losing side. It is a good thing I do not need a seconder.

Just two questions to the Minister, maybe to your officials, not to the Minister. Do you have any idea of how many legislative changes might be needed in Clause 15? Have you any enumeration of how many we would need?

My second question, by the way, just so you know as well, if indeed that does cause you problems I can understand, but are there some things in Clause 15 that we could implement immediately? Clause 15, of course, does not allow you to discriminate on the basis of race. Are there any problems there? National or ethnic origin, colour?

Mr. Chrétien: We have the question of the Indian Act, and the question of the Indian Act where you know, the woman of Indian origin marrying a white man and losing her Indian status.

We have been talking with the Indians on that since 1968 when I was the first Minister to resolve it and I am told that there are only a couple of reserves that have accepted so far.

Mr. Nystrom: What about national or ethnic origin, or colour or religion. Some people have suggested that sex may be a problem because of different laws and so on. What about some of the others?

Mr. Jordan: I think in each one of them one could pick out specific things that in our discussions with the provinces, and again I think it is important to emphasize that their human rights codes are addressed at the moment basically to non-discrimination in the private sector. Their concern is that they have a lot of laws, quite apart from non-discrimination as dealt with in the human rights codes, that could be in trouble. They also recognize, and I think this is particularly important, that their human rights codes and ours are going to have to be

[Page 50]

reviewed because we now allow an awful lot of exceptions with regard to, you know, in private accomodation, for example, most of the codes say in single units dwellings or in less than four units you can discriminate on the basis of race, colour, sex, you name it.

So those very basic laws. the human rights codes themselves are going to have to be reassessed very closely, do the pension exceptions, do the insurance exceptions as they apply to sex or age meet the new test that they must be justifiable. I think the problem is a very real one.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. I see that honourable members are ready for the vote.

Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like to call the vote on Clause 29. Shall Clause 29 carry?

Miss Campbell: No, Mr. Chairman. I would like to ask a few questions on Clause 29.

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

Miss Campbell: I am very interested in why Clause 15, the clause on sex, cannot come into force right away. This was one of the reasons why I truly supported the Human Rights Commission when they brought in their preferred Clause I where every man and woman is equal in Canada before their Charter, and to wait three years to have that equality clearly enunciated is very offensive to me; so perhaps you would like to tell me why, at the federal level we have to wait three years to have equality. I thought it was in existence rather than just a moral obligation at the federal level, prior to this Charter. I thought we had equal status at the federal level.

I can understand that maybe there are difficulties at the provincial level.

So my two questions are, what is it that as of today we are not treated equally under the federal legislation and why do we have to give the federal government three years to come into play; and secondly, what needs still have to be looked at federally for men and women to be treated equally at the federal level?

Mr. Chrétien: You know, I think that we said that the equality exists and it is recognized at the time in the Canadian Bill of Rights and it is reaffirmed here in different wording that there were requests and it will apply, but I just gave you one example of an obvious discrimination between men and women, the Indian Act, and this, you know we made a commitment since 1969 to the Indians that we would not change the Indian Act without their approval.

We started to talk about this problem and I remember Senator Casgrain coming to see me on that and so on, and we negotiated with them for twelve years. Now we say that is the end of the road. We have to pass an act because it is still a

[Page 51]

legislation and you are asking for an example, that is one good example, we will have to amend the Indian Act.

Miss Campbell: in that particular example, I do not go along with you, because my understanding is that the federal government under the status of women on reservations is waiting specifically for bands to come to the federal government asking them for the changes because of the Indian Act.

Let me finish, because they are going to cut me off on my time, and you can answer that, but I would think that under this Charter that the Indian Act at present might be demonstrably justifiable under all circumstances, and that goes to race as well as the Indian Act and the status of women, but I do not see that we have to wait three years federally for this section to be implemented because I have been under the assumption that all directions to federal departments had been equal status.

I would like to know another department, perhaps, where it is not being implemented. I feel very strongly on this because I’ve always felt that this Charter should, as of the passing of it, recognize everyone in and women at least federally and I would like to know if you can give me that justification that federally all men and women are supposedly equal, aside from the Indian Act.

Mr. Chrétien: My answer is yes.

Miss Campbell: Why do we need three years federally?

Mr. Chrétien: Because, you gave me one example. We need three years for the Indian Act.

Miss Campbell: No, they can do it today if the bands came.

Mr. Chrétien: We have to amend the Indian Act and that is clear. It is there. it is on the books now, and we are not abrogating any law with the Charter.

[Translation]

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

[Text]

Mr. Nystrom.

Mr. Nystrom: I just want to say a few words in support of what Coline Campbell has said. Coline said that she does not see why we have to wait three years and that, Mr. Chairman, is the position of our caucus. We support what Coline has said. We don’t see why we have to wait three years. Accordingy, I will be opposing Clause 29 and l would just like to maybe ask the Minister’s officials whether or not they could quickly reconsider some of the things there.

Perhaps we should wait three years for two or three of them, but maybe some of this should go into effect within one year.

Perhaps there is a compromise.

I just think that is being a little bit too hesitant in terms of applying what is in my opinion one of the most important parts of the Charter, and that is the obligation not to discriminate on the basis of sex, age, disability, race, colour, national or ethnic origin and so on.

[Page 52]

For those reasons, I would oppose it and suggest that we take a second look at it and make sure that this part of the Charter is applicable sooner than three years. I am sure that this time I will have at least one supporter in Miss Campbell when I vote.

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

The honourable Ray Hnatyshyn.

Mr. Hnatyshyn: Mr. Chairman, I just want to ask the Minister, I do not think the question with respect to age has been clearly answered in the implications of the provisions in the constitution and the Charter of Rights relating to age have been adequately answered in the sense that it just occurs to me that we had this discussion this morning, for example, that the Supreme Court will be doing a very substantial amount of work in determining the application of non-discrimination by virtue of age provisions, how this relates to the whole question of compulsory retirement, particularly retirement of Supreme Court judges at the age of 75.

I am wondering whether the Minister could comment on whether he has drawn any conclusions up to this point as to what the consequences will be vis-à-vis the compulsory retirement provisions in legislation, both federally and provincially. that do require compulsory retirement at any age and in particular, when the courts are going to be asked to interpret that particular revision, I recall when the mandatory provision was brought forward with respect to judges and members of the Senate, I remember a very long and articulate defence against having a compulsory retirement age put forward in the sense that a lot of them felt it was a contractual obligation, and this will certainly enhance those who argue that there should not be any legislation with respect to compulsory retirement ages.

So I was wondering whether the Minister has now had a chance to consider the implications and whether he is in a position to report to the Committee at this point.

Mr. Chrétien: You are using a very awkward example in some ways because the status of the legislation is constitutional, just like the Senators. We will have to amend the constitution if we decide to do so, and I do not think any interpretation of the Charter and the constitution, we say the Charter does not supercede the constitution, and so that is an area where we will proceed, in my judgment, by constitutional amendment.

However, I suppose a judge at 75 were to use the Bill of Rights and say, “I want to keep on in my job”. I do not think if he goes to the courts—that would be a funny situation. Because this provision is in the constitution, so I guess if the people want to take it out we will have to take it out in amending the constitution.

The Joint Chairman (Mr. Joyal): Thank you very much. Honourable Ray Hnatyshyn. Honourable Bryce Mackasey.

Mr. Mackasey: I just want to ask one short question of the Minister for clarification. We discussed several months ago

[Page 53]

about the three-year period and I think you mentioned at the time that although the Charter would provide a three-year period, it did not mean to say that you would begin making changes in three years, you would be making them over a period of three years?

Mr. Chrétien: Yes.

Mr. Mackasey: I think that is the answer to Mr. Nystrom and I think you have not clarified that.

Mr. Chrétien: These rights will be applied by us immediately, there is no doubt about it. We are bound by the old—anyway, the equality between the man and woman was in the Diefenbaker Bill of Rights and we were obligated there, we were bound morally, but there are some aspects of the legislation that govern Canadian citizens under the federal government will have to be implemented, will have to be corrected at least, but that will take some time.

We gave a few examples like the Indians, there could be some provision in the military laws and so on.

Mr. Mackasey: Well, Mr. Minister, it is more accurate to say that the necessary amendments to federal legislation to conform will be an ongoing process and will start immediately over a three-year period?

Mr. Chrétien: Start immediately, and we cannot wait but we have a maximum three years, but it could be next month in some cases.

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

Mr. McRae.

Mr. McRae: Just a short interjection. l will support anyone around the table who would like to move the changes to the Indian Act which would give Indian women the same rights as Indian men. Actually, if the change was done correctly, I would become an Indian under the provisions, but there is a horrendous problem in the Indian community to bring this about and we need the three years. We should start now, and so on.

But I just wanted to make sure that everybody understands that this is going to take a long time and it is not going to be easy.

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

Mr. Robinson.

Mr. Robinson: Mr. Chairman, now that we have reconciled our differences I just have a brief question for the Minister with respect to proposed Clause 29 and it is this: could the Minister explain the reason for the delay in preventing discrimination on the basis of national or ethnic origin and religion, and in particular, could the Minister explain the reason for making the physically and mentally handicapped wait three full years before that particular legislation becomes effective, rather than the more reasonable period of, for example, one year, or at the outside two years?

Mr. Chrétien: I replied to that question earlier when you were not here. I explained the reason why we need some time,

[Page 54]

it is as simple as that and you were not here. We had a long debate on that.

Mr. Robinson: With respect, Mr. Chairman, on a point of order. I believe the Minister would not want to mislead me.

With respect to the question of national or ethnic origin or religion, it is my understanding there was no clarification of the need for delay on those grounds.

Mr. Chrétien: We say that on Clause 15 we need delay, that we can have a piece of legislation tomorrow if we were to be ready and if you were to guarantee to us you will not say a word, it would be faster; but that is a problem, we need to go in the House. We have passed three bills, I guess, or four bills since October, so it is very nice for me to pile up bills in the House of Commons but they do not come to the floor because it takes too long time.

So it would be realistic for me if you were to give us a commitment that we could pass all the bills without a debate in one week, I will make a deal with you.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson. i see that honourable members are ready for a vote on Clause 29. Mr. Hawkes has requested a recorded vote on Clause 29.

Clause 29 as amended agreed to: yeas, 19; nays, 3.

On Clause 30—Citation.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to take the next amendment. The next amendment is numbered N-1.1, Clause 30, page 8, it would add a new clause, and it is an amendment moved by the New Democratic Party.

I will repeat the identification of the amendment: N-1.1, Clause 30, page 8.

I would like then to invite Mr. Robinson to move the amendment in the usual way.

Mr. Robinson: Mr. Chairman, just a question of clarification. I apologize for being absent, but was CP-14 not next on the list, perhaps, the Conservative amendment referring to extension of language rights?

The Joint Chairman (Mr. Joyal): it has been reserved.

Mr. Robinson: it has been reserved?

The Joint Chairman (Mr. Joyal): Yes.

Mr. Robinson: I see. Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Honourable Senator Tremblay, please.

Senator Tremblay: I put the question on “opting in”. That is why discussion was reserved until we reach the amendment to the clause 43.

[Text]

The Joint Chairman (Mr. Joyal): Yes. That amendment, Mr. Robinson, through unanimous consent around the table yesterday has been reserved for further discussion and agreement between the mover, Mr. Crombie, and the Minister of Justice so that when there is some kind of progress in the discussion to agree on the content of the motion, then the

[Page 55]

amendment or the new amendment will be brought back into the Committee. That was said earlier this morning.

Mr. Robinson: Thank you, Mr. Chairman.

I would like then to move a new proposed Clause 30 as follows, and i should just explain that this was originally numbered N-1.1 because it tied in directly with the earlier proposal which was defeated, unfortunately, which would have restricted the limitations clause substantially beyond that which was proposed by the government. So this would have been the second element of that particular amendment, Mr. Chairman, and it reads as follows:

I move that the proposed Constitution Act, 1980, be amended by adding thereto immediately after line 38 page 8 the following section:

30(1) The rights and freedoms set out in Clauses 2 and 6 are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

(2) In time of a public emergency that threatens the life of the nation or any part thereof, the existence of which is proclaimed by proclamation issued by the Governor General under the Great Seal of Canada and confirmed by a resolution approved by at least two thirds of the members of the House of Commons, the rights set out in Clause 7 and Clauses 10(c) and 11(e) may be derogated from to the extent required by the exigencies of the emergency except that measures taken pursuant to this Clause shall not involve any distinction on a ground set out in Clause 15(1).

Monsieur le président, en français, il est proposé

Que le projet de Loi constitutionnelle de 1980 soit modifié par adjonction, après la ligne 36, page 8, d’un nouvel article:

“30. (1) Les droits et libertés énoncés aux articles 2 et 6 ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans une société libre et démocratique.

(2) Il peut être dérogé aux droits énoncés à l’article 7 et aux alinéas 10c) et 11e) en cas d’urgence nationale reconnue par proclamation du gouverneur général sous le grand sceau du Canada, approuvée par au moins deux tiers des députés de la Chambre des communes. par laquelle il est déclaré que l’existence de la nation ou d’une section de la nation est menacée. Cette dérogation ne porte atteinte à ces droits que dans la mesure ou la situation d’urgence l’exige et qu’est exclue toute distinction fondée sur un des motifs enoncés au paragraphe 15(1)”.

Mr. Chairman, in view of the fact that the original amendment that was proposed to Clause I was defeated by this Committee, and at that time many of the arguments which I would have put forward, in fact all the arguments I would have put forward in justification of this particular clause were

[Page 56]

made, namely that there were certain fundamental rights and freedoms which should never be derogated from and that point was made very clear to us by the Canadian Jewish Congress, by the Canadian Bar Association, Professor Tarnapolsky, the Canadian Human Rights Commissioner and, indeed, is contained in the International Covenant on Civil and Political Rights.

In view of that, Mr. Chairman, wording of this more restrictive nature was desirable, indeed essential, to ensure that there might never be any derogation from certain fundamental rights and freedoms.

The second safeguard, Mr. Chairman, is to ensure that where there is to be a limitation on these fundamental rights, that that can only occur when Parliament, by a two thirds majority, specifically approves these particular limitations.

We have seen in the past too many examples of derogation of fundamental rights and freedoms, and I suggest that if these rights and freedoms are so fundamental and so important in Canadian society, that we should very narrowly restrict the circumstances under which they may be derogated from and we should recognize that at no time should this derogation involve any distinction or discrimination on the grounds of race, sex, national or ethnic origin, handicap and the other grounds that are set out in Clause 15 (1).

That is the purpose of the amendment, Mr. Chairman, and I invite members of the Committee to support it.

Thank you.

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

[Translation]

The Honourable Minister of Justice.

Mr. Chrétien: Mr. Chairman, we do not intend recommending that the members of this Committee accept this amendment. As the honourable member has just recognized, there was quite a long discussion on that subject prior to this. Of course, he did try at that time, he is coming back with something else, persistence is a virtue and so is consistency,

So I am maintaining the position I had during debate on the other clause and I can really see no further problem. Perhaps it even would have been possible to get into a procedural debate about this but I think that it behooves us to purely and simply vote now.

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

The Honourable David Crombie.

[Text]

Mr. Crombie: Mr. Chairman, I have a question for Mr. Robinson, If I could.

Mr. Robinson, with respect to Clause 3l, through you, Mr. Chairman, the question is: is it redundant given the limitation in Clause 1?

Mr. Robinson: Mr. Chairman, indeed this would repeat the limitations provision in Clause 1.

[Page 57]

As I indicated, this was predicated upon Clause I being reworded to set out in an affirmative way the rights and freedoms which are set out in the Charter.

Now, I recognize that there would be a duplication there, but, as I say, that was predicated upon the earlier clause and certainly, if you feel it would be more appropriate to specifically refer to just subclause (2) and not repeat the other test, I would certainly be prepared to accept an amendment of that nature.

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

Mr. Crombie: I have another question if I could, Mr., Chairman. I do not want to try your patience, but it is a question related to Clause 32.

One difficulty that one finds is that by proclamation the government can suspend those sections which you outlined and then it is to be confirmed by resolution, but there is not time factor. That is to say, the government could declare it and have the House confirm it two years hence, does that not give you some cause for concern?

It says:

Proclaimed by proclamation issued by the Governor General under the Great Seal of Canada and confirmed by a resolution, approved by at least two thirds of the House.

The possibility for mischief is pretty impressive, it seems to me, because you have allowed the government to declare, and it is not bound by any time factor in relationship to the House and indeed, the harm that is done could go undealt with by the House?

Mr. Robinson: Mr. Chairman, once again, I am pleased that Mr. Crombie has raised this point and the original draft which went in did contain the words “confirmed at the earliest possible time” and I would certainly, with consent of the members of the Committee, I believe that was an oversight in the drafting by the Justice officials of the amendment, in the rush of amendments proposed, and it did certainly contain that proviso and it is one which I believe is important, which should be in there.

Mr. Crombie: Well, I do not really wish to prolong the matter, but I think it is an important matter, Mr. Chairman.

I am wondering if the right of a government to declare and therefore, withdraw these rights, should not fall, if indeed they fail to have it confirmed within a length of time. Do you understand?

I am just looking for a solution; if you have one, I will be happy to have it.

Senator Austin: Well, Mr. Crombie, the way I read the draft that has been put in place by Mr. Robinson, the proclamation would require two steps for its efficacy: one would be the proclamation and the other would be the confirmation, and no rights would be removed unless Parliament confirmed the removal. In other words, what you are having is something

[Page 58]

rather unusual, the confirmation of a proclamation, and it is not the point you raised at all. It is quite a different one.

You were making the assumption that the proclamation would bring about the cessation of rights, that is not what it says here.

Mr. Crombie: All right, thank you.

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

Mr. Nystrom.

Mr. Nystrom: I wanted to make one brief point. I was here in Parliament in 1970, in October, when we had the crisis in Quebec with the FLQ and I was here for the invocation of the War Measures Act, and at that time, of course, it was invoked solely by the government because of the powers that the government has in our constitution and I was, as I said, here during that time and as the crisis dragged on we saw more and more abuses; we’ saw a lot of rights taken away from innocent people in terms of the work of the police in the province of Quebec and I am thinking of many of the legal rights that people have.

People were arrested without the right to seek counsel and so on. What we are suggesting here is that, sure, there may be an emergency, we may have to take away temporarily many of the rights that are referred to in Clause 7, Clause 10, Clause 11, because indeed there may be an emergency and those rights may have to temporarily be put aside or taken away for a short period of time.

However, what we are saying is that if indeed there is a crisis, then the government must be able to convince Parliament that there is a crisis, that there is an emergency.

And since you are doing such drastic things in terms of limitation of rights, that we must convince at least two-thirds of the Members of Parliament that there is an emergency and if you cannot convince two thirds of the Members of Parliament, then in my opinion the emergency does not exist, and I think that is reasonable. It is certainly, I think, reasonable for those of us who sat here in October, 1970.

I remember many times the words of the honourable Robert Stanfield when he said that if he made any major political mistake, it was to go along with the invocation of the War Measures Act, and I think if you had a proviso of this sort in our constitution where the government had to, within a certain period of time, put before the House the reasons why an emergency existed, the reasons why we had to temporarily put aside part of the rights that people enjoy, and if they could prove that to the two thirds of the members, then fine, but that did not exist in 1970 and I think that it is something that we should now be inserting in our constitution, because I do not want a repetition of what happened in this country some 10 and one quarter years ago. I do not think it is a good thing for a democratic society and a free society because there can be too much abuse, and too much abuse that is triggered by a

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small group of people, however well intentioned their motives may be.

It is the judgment of the Prime Minister and the Cabinet, and what we are saying here is that even though their motives may be good, they may be excellent, even though they may be right, 100 per cent right, that when you take such a drastic step in the country, it should be a decision that is confirmed by two thirds of the Members of Parliament, which in essence means, Mr. Chairman, that you need Opposition MPs as well, and, in our parliamentary system, perhaps members from all three parties and l think that is good.

One last point, it also means that you need people from all regions of the country. it means that you do not just have MP5 who may be concentrated in the government from east or west, Quebec or Ontario or what have you. You will need MP5 from all regions if you call for two-thirds.

So those are a few ideas based on my anxieties and experience in 1970.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Mr., Hawkes, a short question.

Mr. Hawkes: l was previously disposed to vote for subclause (2), but I am puzzled over paragraph 1, and in particular, Mr. Robinson, why you pulled out Clause 6? It seems to be some assertion of priority and you are asserting that 2 and 6 have more importance than others.

Mr. Robinson: Mr. Chairman, I have had discussions with Mr. Crombie and in light of his very reasonable comments with respect to the duplication involved in Clause 31, I am prepared to withdraw that particular subclause and, with the consent of the Chair and the Committee, just have the vote on subclause 2, which would be renumbered subclause 1.

The Joint Chairman (Mr. Joyal): Is it agreed by the members of the Committee?

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): It is agreed. Then subclause (1) of the amendment numbered 30 is deleted and subclause (2) is numbered subclause (1).

L’honorable senator Tremblay.

[Translation]

Senator Tremblay: I would like to have some clarifications. I would first of all like to say that I am truly sympathetic towards the proposal, but when it is a matter of declaring an emergency situation, it seems to me that ordinarily we declare the situation will exist for a certain period of time, and this period of time is automatically prolonged unless a statement, declaring that the emergency is over, is put forth.

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What concerns me is the matter of specifying the way in which the period of emergency is defined and declared. Perhaps, the minister’s legal advisers could tell us how one would go about deciding on the length of the emergency, and on the date at which the emergency situation would cease because these two points have not been studied. Perhaps by asking this question I am touching on certain other articles that I am not yet familiar with. That is why I am asking information from the legal advisers.

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

[Text]

Mr. Robinson: Mr. Chairman, perhaps if I might just explain the intent of the proposal, this is taken virtually directly from the International Covenant on Civil and Political Rights and I would draw Senator Tremblay’s attention to the words that these rights may be derogated from to the extent required by the exigencies of the emergency.

Now, there is a test contained within that particular proposal that it has to be related directly to what is required by the emergency.

Senator Tremblay: In substance, but not necessarily in time.

Mr. Robinson: Well, no, but if there were any argument in terms of time that it was no longer required, then an individual would be able to go to the courts and say, “This is no longer required by the exigencies of the situation, I therefore challenge the continuation of it”, and they could go into court on that ground.

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

I see that honourable members are ready for the vote.

Mr. Hnatyshyn: I am sorry, Mr. Chairman, I just wanted to get a clarification from Mr. Robinson with respect to subclause (2).

I would like to ask Mr. Robinson just the operation of this particular provision at a time when Parliament is not sitting. Does he feel as though there might not be some consideration, assuming the consent of two thirds of the House of Commons is required and the existing requirement under our constitution that the Parliament must sit, with respect to the sittings of the House of Commons, does he not consider that it might cause some difficulties vis-à-vis the matter if we do not put some provision in, within a certain number of days, the calling of the motion must be brought within a certain amount of time after Parliament has convened, or within a certain period of time after the proclamation?

In other words, what I am concerned about is two factors: one is how this might, on one hand fetter a government if Parliament is not sitting: on the other hand, I would like to have the thing brought forward as a priority item at the earliest possible date if Parliament is sitting.

So there are two sort of concerns on both ends of the spectrum, if you will, and I am becoming more, at least my thought process is maybe there should be some time limit in which the matter must be addressed by Parliament?

Mr. Robinson: Mr. Chairman, I think in terms of the second part of your question, it would be safe to assume that if there

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were indeed a time of public emergency, that the government in power would want to move as quickly as possible to get confirmation which is required under this clause in order to derogate from the provisions from which they can derogate, so I do not think there is any suggestion that they would not move as quickly as possible because they could not take action until Parliament had approved that action by a two thirds vote.

With respect to the first concern about if Parliament was not sitting, as I understand the question, what about the difficulty in getting at least two thirds of the members of the House of Commons together, I would remind Mr. Hnatyshyn that this subclause would still be subject to the over-riding provisions of Clause 1, that if it could be demonstrably justified under the circumstances that that was not possible, that the government could then derogate from that.

[Translation]

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

[Text]

Honourable David Crombie.

Mr. Crombie: Mr. Chairman, I know we wish to proceed, but this is a very important matter and I am concerned about a couple of matters, particularly in relation to the last comment because I know the officers of the Crown have a concern.

I think that most of us like the part in the motion from Mr. Robinson that requires that there be a confirmation process by the House. I think that is important.

On the other side of the question, no one wishes to tie the government to not be able to deal with a matter of emergency, you cannot say with an emergency to please stop it for four days while we get Parliament together.

So I do not want, as I said, to tie the executive power or responsibility to confirmation of the House.

On the other hand, the other problem is I do not want the executive power to not have to worry about the House either. which can also happen and indeed there is a greater danger, given the recent history in a number of countries.

I am wondering if it is possible for us to think of some wording and I would ask the Minister, given both of those problems, is it possible we could arrive at a wording that allows the proclamation to occur and requires that there be confirmation within 30 days, or whatever time, and then if the confirmation does not occur, the Crown power lapses. That is now I would see it. That protects both dangers, it seems to me.

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Minister of Justice, you may now answer.

Mr. Chrétien: Mr. Chairman, this problem has taken me quite by surprise, but I find the arguments presented interesting. We could, perhaps, wait until later to resolve the problem. I will think about it and look into the possibility of doing something.

[Page 62]

[Text]

I have good news for the members of the Committee. The plane did not crash, so anybody that wants a copy of the report, we have 25 copies of the nonofficial committee—-did not consult anyone of us—on the constitutional problem as some members see it in England, but not the government.

[Translation]

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

Mr. Corbin: Mr. Chairman. on a point of order.

Could the minister hand over these 25 copies to the clerk in order that all the committee members have access to the document? Otherwise, if these documents are simply put on a table, they will disappear in a matter of seconds.

The Joint Chairman (Mr. Joyal): I will ask our clerks to circulate them to the honourable members.

[Text]

Miss Campbell: We could pick them up right here. I do not think they should be tabled.

An hon. Member: We just want to make sure we get it.

[Translation]

The Joint Chairman (Mr. Joyal): The honourable minister of Justice has suggested to stand the discussion on the proposed motion until 2:30 this afternoon.

I understand there is unanimous consent.

The honourable David Crombie.

[Text]

Mr. Crombie: Point of order, dealing with the procedure for this afternoon, now that we have reserved Clause 30, we have come to the end of the Charter. We still have standing then, Clause 30, as you indicate, Clause 25, I think it is, Clause 26 and a new Clause 21 which will become a new Clause 44 perhaps.

I wonder what your thought was in relation to picking up those Clauses we have already stood in the Charter before proceeding to Clause 31. Did you intend to go back to those, or do you just plough through.

The Joint Chairman (Mr. Joyal): No, because that does not prevent us from dealing with the next part of 31 motion. I have not called the vote on all of the clauses of the charter of rights. I will do that later on when we have really completed all the sections of the proposed charter.

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

[Translation]

The Joint Chairman (Mr. Joyal): The meeting is adjourned until 2:30 this afternoon.

[Text]

The meeting is adjourned.

AFTERNOON SITTING

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

We are about to resume consideration of the proposed resolution introduced and moved by the New Democratic Party.

[Page 63]

It was agreed by honourable members to stand the proposed amendment and to come back to the core of the amendement, after consideration of possible amendments or subamendments or the substitution of words within the content of the amendment.

At this point I would like to invite the honourable Mr. Robinson to comment on the proposed thinking over the amendment.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, thank you.

I will attempt to be brief. I would like to say that in view of the fact that the Minister very graciously informed me before the luncheon break that we could substitute and change, the wording to our hearts content but that it would not make any difference to him whatsoever, in that he had no intention of accepting any different wording on this particular subject, I have a proposed rewording which I will then move, recognizing the Minister’s concern about the subject and will not spend any great length of time on it.

I should say that l have consulted on this with my colleagues in the Conservative Party as well.

The amendment would delete the words “and confirmed by a resolution approved by at least two thirds of the members of the House of Commons”. Then it would add at the end, the words “the measures that derogate from the rights affirmed in these sections will lapse within 30 days if not further extended by a two thirds vote of the members of the House of Commons.”

Mr. Chairman, I will try to explain those in French as well, and I apologise in advance if it is somewhat hesitant.

[Translation]

The amendment would delete the words “and confirmed by a resolution approved by at least two thirds of the members of the House of Commons”. Then it would add at the end, the words “the measures that derogate from the rights affirmed in these sections will lapse within thirty days if not further extended by a two thirds vote of the members of the House of Commons.”

[Text]

I hope that is a reasonably accurate reflection of the French version.

The Joint Chairman (Mr. Joyal): The only point l would like to clear up, as Joint Chairman of this Committee, is to request the unanimous consent of honourable members to allow you to make that substitution of words in the main amendment in conformity and in accordance with the rules of procedure.

Well, I see no opposition from honourable members, so go ahead.

Mr. Robinson: Thank you, Mr. Chairman.

As I said, in view of the fact that the Minister has said that anything we put up would be immediately shot down, I would just like to explain that the purpose of the amendment is to clarify the point that the government is to be left with some flexibility in proclaiming a state of emergency and taking the necessary measures which are strictly required to deal with the emergency; but then it is not a carte blanche, and the emer-

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gency provisions will lapse within 30 days, unless Parliament by a two thirds majority decided that it should be continued and that this derogation from the emergency measures is desirable.

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

The honourable the Minister of Justice, followed by the honourable David Crombie.

[Translation]

The honourable minister of Justice.

[Text]

Mr. Chrétien: Mr. Chairman, I do not wish to make a long statement about it. I have looked over the matter. I think those powers which are vested in the government are there. With the charter these powers cannot to be used arbitrarily.

With this Charter, the citizens, have acquired some rights. If we were to use those powers of emergency in a capricious manner, Clause 1 will intervene. The regulation will be quashed. The remedy could be applied.

In my judgment, it is not appropriate to introduce that mechanism. At the same time I would like to point out that this is a Joint Committee and the resolution of Mr. Robinson does not include the Senate.

I think it is unnecessary, and also another addition which sounds good, but adds nothing and only makes it more complicated and would be forgotten after it is voted on.

So we are against it.

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

The honourable David Crombie.

Mr. Crombie: Mr. Chairman, the problem stated prior to the luncheon break was not only worthy of consideration but of rectification. The problem was to make sure that the charter did not diminish the government’s executive power to deal with emergency situations but at the same time while insuring and indeed providing for that flexibility from executive power, it did not allow executive power to go uncontrolled.

The way in which it reads would appear to me that the Minister is asking for a power which is not controlled, and I am very concerned that they are not willing to accept the amendment from Mr. Robinson. I hope other members will have a little more wisdom on the matter.

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

Mr. Robinson: Mr. Chairman, I do not propose to add very much to what Mr. Crombie has said.

But I would like very much like to explain the absence of any reference to the Senate followed extensive representations by my colleague and friend Stanley Knowles.

Mr. Mackasey: I insist that Stanley Knowles get his full title: the Honourable Stanley Knowles.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson. The Chair understands that honourable members are ready for the question.

[Page 65]

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 30 of the proposed motion. That Clause bears upon the title of the Canadian Charter of Rights and Freedoms.

As I have said, the Chair has called Clause 30 and the Chair has not been informed of any amendment or subamendment on the proposed Clause 30.

The Chair is in a position to call the vote on Clause 30.

Clause 30 agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite the honourable members to move on Clause 31, a new part of the proposed motion called equalization and regional disparities.

On Clause 31—Commitment to promote equal opportunities.

I would like to invite the honourable members to move on clause 31 of the resolution.

Clause 31 is the first section of the second part of this resolution entitled “Equalization and Regional Disparities”.

[Text]

In relation to Clause 31 the Chair has been informed that there are two amendments in relation to that proposed clause. The first amendment is one introduced on behalf of the New Democratic Party. The number of the proposed amendment is N-34, Clause 31, page 9.

[Translation]

The Joint Chairman (Mr. Joyal): The number of the proposed amendment is N-34, Clause 31, page 9.

[Text]

I would now like to invite Mr. Nystrom to move the proposed amendment.

Mr. Nystrom: Mr. Robinson, Mr. Chairman.

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

Mr. Robinson: Thank you Mr. Chairman.

This amendment would add a new paragraph (d) to the clause on equalization in which there are a number of commitments articulated by the parliament and the provincial legislatures.

I move that Clause 31 of the proposed constitution act 1980 be amended by striking out the word “and” at the end of paragraph (b), adding the word “and” at the end of paragraph (c) and adding immediately after line 15 on page 9 the following:

(d) fully implementing the International Covenant on Social and Cultural Rights and the goals of a clean and healthy environment and safe and healthy working conditions.

Et en français, il est proposé

Que l’article 31 du projet de Loi constitutionnelle de 1980 soit modifié par adjonction, après l’alinéa c), de ce qui suit:

«d) mettre en oeuvre intégralement les clauses du Pacte international relatif aux droits économiques, sociaux et culturels, et de réaliser tous objectifs dc salubrité de l’environnement et de sécurité et d’hygiene du travail».

[Page 66]

Mr. Chairman, the purpose of the amendment is to remedy what, in our view is a major omission from the proposed charter of fundamental rights and freedoms.

Clause 31 indicates certain economic commitments on the part of both the provincial and federal governments,

The purpose of the amendment is to reinforce and to state within the context of a charter of fundamental rights and freedoms Canada’s commitment not only to the fundamental civil and political rights which we take for granted in this country and which are so essential, but also to recognize that there is a second aspect to human rights, namely the aspect of economic, social and cultural rights; and to recognize that Canada is committed both at the provincial and federal levels since 1976 to this particular covenant.

So, Mr. Chairman, we are not asking for anything which does not already exist.

What we are attempting to do is to recognize that in a statement of fundamental rights and freedoms, there must be reference to these rights and freedoms.

Mr. Chairman, what are the kinds of rights and freedoms we are talking about, well, the honourable, the Minister of Justice, in his statement of July last on the charter of rights and freedoms, said that the purpose of entrenching a charter of rights and freedoms was to list the essential ingredients which all Canadians take for granted, the central values of our society.

Mr. Chairman, surely the central values of our society must include, not only the civil and political rights which are very important, but in addition must make reference to the economic, social and cultural rights as well.

I would point out that the universal declaration on human rights, adopted by the United Nations, makes specific reference to the economic, social and cultural rights: the freedom from fear and want is referred to in the preamble, for example: and there are a number of clauses dealing specifically with various aspects of economic rights, including Article 25—the right to a standard of living adequate to the health and well being of himself and family, including food, housing, clothing and medical care and necessary social services; the right to freely participate in the cultural life of the community and enjoy the arts. I know that a number of members of this committee has a special interest in that particular aspect of the universal declaration on human rights.

Again, Mr. Chairman, there is the international covenant on economic and social and cultural rights which binds Canada since 1976. Examples of the areas which it covers are the right of every person who is able to work at a job—surely, a fundamental value in a civilized society,

There is the right to the enjoyment of just and favourable conditions of work, to safe and healthy working conditions; to an adequate standard of living for the person and the person’s

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family; the right to be free from hunger; to adequate health care, and the other fundamental and essential, economic, social and cultural rights.

Mr. Chairman, a number of witnesses appeared before this committee asking the Committee to recognize the importance of including in a charter of rights these particular rights.

There were, among others, the BC. Federation of Labour, the Canadian Federation of Civil Liberties Association, the United Church, the National Anti-Poverty Organization, the New Brunswick Human Rights Commission—and I could go on and on.

But I believe I cannot do better than to quote from the brief of the BC. Federation of Labour who stated that perhaps for the vast majority of Canadians, social and economic conditions are significantly more real on a clay to day basis than are those which underly the traditional civil and political rights.

Mr. Chairman, they go on to quote from an article which appeared in the 1961 edition of the McGill Law Journal called Economic Rights. The purpose of that article was to call for greater recognition of and respect for economic rights.

The article was short and it made the point in a very vivid way and closed with the following paragraph:

Yet if this society does not evolve an entirely new set of values, if it does not set itself urgently to producing these services which private enterprise if failing to produce, if it is not determined to plan its development for the good of all rather than for the luxury of a few, and if every citizen fails to consider himself as a coinsurer of his fellow citizen against all socially engineered economic calamities it is vain to hope that Canada will ever reach freedom from fear and want. Under such circumstances any claim by lawyers that they have done their bit by upholding civil liberties will be dismissed as a hollow mockery.

Mr. Chairman, the author of those words were the present Prime Minister, Pierre Elliott Trudeau.

I would suggest that those words ring as true today as they did when they were written in 1961.

Mr. Chairman, I would conclude by also referring also to the recommendation—the unanimous recommendation-of the MacGuigan-Lamontagne Committee which considered Bill C-60 and recommended at page 9 of their report—and I quote:

We also recommend the recognition of economic rights as illustrated by the principles set out in the Universal Declaration of Human Rights.

Mr. Chairman, I urge committee members to accept this as a goal of Canadian society, for that is all that we are asking, that there be a commitment to implement this covenant which Canada is already bound to implement—to implement the goal of a clean and healthy environment, Surely in these days of acid rain and threats to our environment and a number of different sectors, we should reaffirm our commitment to that concept of a clean and healthy environment, and for all those

[Page 68]

people who work, whether they are in the office, the plant or the mine, the goal of a safe and healthy work place.

Mr. Chairman, we are talking about fundamental rights and freedoms and the values of Canadian society, and I would suggest we should be including in any such statement these basic rights—the economic, social and cultural rights which all Canadians are entitled to.

Thank you, Mr. Chairman.

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

The honourable James McGrath.

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

Mr. Chairman, if there was one area in the 12-item agenda at the First Ministers meeting where there was consensus, it was certainly in the area of entrenching the principle of equalization in the constitution.

It is the very heart and soul of the Canadian federation. It is the concept of sharing which is really what the federation is all about.

The amendment put forward by the government incorporates some of the principal concerns of the provinces, especially the recommendations made to the committee by both Premier Blakeney and Premier MacLean. l would say it was the Blakeney proposals which came closest to forming a consensus at the first ministers meeting, if my memory serves me correctly.

Now, that speaks to the general thrust of the governments amendment.

Now, with regard to the amendment moved by the New Democratic Party, Mr. Chairman, I have some concerns. Whilst, on the face of it, it looks like the kind of amendment which would commend itself to all honourable members of this Committee, my concern is that by cluttering up Clause 31 with this amendment you could be providing the federal government with a rational basis at some time in the future for withholding equalization payments. That is a matter of seine concern to me.

I can fully sympathize with what is contained in the international covenant on social and cultural rights. We can all sympathize and empathize with the goals of a clean and healthy environment and everybody in this committee and in the country favours safe and healthy working conditions.

Indeed, I would say there is not a province in this country which does not have adequate legislation governing safe and healthy working conditions.

Again, the New Democratic Party is attempting to try and put everything into the constitution. That, I think, is a danger which should be resisted.

I would like to make it very clear, Mr. Chairman, that we are not going to support the amendment for that reason; not that we are opposed to the principles embodied in the amendment—and how could you be? But we are just concerned about cluttering up what is right now a good clause in the

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charter; it is clear and spells out what the federal government would do in terms of equalization. It defines what “equalization” is and the concept of promoting equal opportunities particularly—and this is the new part of the amendment which satisfies most, if not all, of the provinces—that equalization is essentially designed to provide essential public services of reasonable quality to all Canadians. That is the bottom line and should remain the bottom line. For that reason—and reluctantly, Mr. Chairman—we cannot support the NDP amendment.

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

Mr. Nystrom: l am a little bit surprised at the Conservative position here, Mr. Chairman, because we had from them a few days ago on an amendment on economic rights, namely property rights, when it came to the ownership of property they were very concerned that this economic right should be protected and enshrined in the Constitution.

I am very surprised that they would not have the same attitude for other economic rights and other social rights that affect all Canadians. I can think of a number of things that we should be thinking about putting in our constitution if you want to make it into a 21st century document. I think of the right that l think all people should have, for example, Mr. Chairman, to medical care; a right to income and a right to housing, a right to a clean environment. I think these are basic rights that people should have and I believe very strongly that this is the direction that we should be going in the future. I think these are rights that should be enjoyed, they are rights that everybody should enjoy. Some people do not enjoy these rights because of circumstances that are beyond their control; and I think if we evolve into a modern society that they should be enshrined in our constitution.

Now, as you will notice, l say things like a right to an income. I am not talking about the right to a job, but the right to an income. if somebody is disabled they should have a proper income regardless of the fact of whether or not they are disabled. A widow should have a proper income. Often today you do not have a proper widow’s allowance, a proper widow’s pension, and l think that if we were to enshrine some of these things in our constitution that should move a long way towards equality, towards equality in this country between people regardless of what their background is or what kind of a class they may have been born into or what kinds of economic opportunities there may have been for them, or the circumstances of their parents.

These things are beyond the control of a lot of people. I think that is why they shoud be enshrined in our constitution, to make it a more effective 20th and 21st century document.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom. I see that I would like to invite Mr. Robinson to conclude on the proposed amendment. The honourable Minister of Justice.

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Mr. Chrétien: Canada has already committed itself internationally to give domestic effect to the rights set for Indians in the National Covenant and it is hardly needed to reaffirm this commitment in the constitution. The Covenant merely obliges parties to take steps to progressively achieve the full realization of the Covenant rights by appropriate means, including legislative measures. I think that, and I can tell you, Mr. McGrath, it is what we call high sounding rhetoric. I am waiting soon for an amendment to inscribe in the constitution the apple pie and the recipe of ma tante Berthe, and I do think that we cannot put everything there. It is the constitution, so I reject this amendment.

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

Mr. Crombie: Mr. Chairman, I want to make two very brief points. With respect to the motion by the New Democratic Party, it is my understanding that Section 3! has been one which has been pretty well agreed to by all of the provinces. In this particular case it is extremely important because many of the regulatory agencies and many of the things that have to be done within municipalities in particular have to be done within the context of provincial legislation.

I think if my memory serves me right the provinces were signatories to the International Covenant but it is an entirely different matter if you are having to deal with it by law and regulation in your own jurisdiction and you are not ready for it. So I cannot imagine a soul who is against clean and healthy environments. Maybe one or two people. but most of us are in favour of clean and healthy environemnts. The issue is whether or not we can deliver on it without some understanding of what the provinces need in order to deliver it. That is point one.

Point two, Mr. Chairman, is related to property rights in relation to civil liberties. I think it is the wrong interpretation of the understanding of the historic role of property in relation to the development of civil liberties and it carries an entirely different matter than do other economic and social rights which we have adopted in the 20th century.

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

Mr. Robinson: Thank you, Mr. Chairman. I would like to re-emphasize the point made by my colleague, Mr. Nystrom, that if we are to include economic and social rights in this constitution it is not good enough just to say that those people who own property will have certain economic rights. That has been the only reference by the Conservative Party to economic rights and they say that that is justified by history. Well, certainly. if one looks at the history of this country in terms of the rights of property we may be wanting to look more on the rights to a clean and healthy environment. That is precisely our concern with the way in which our environment has been destroyed in many cases by the pursuit of property, the unrestricted pursuit of property. the enjoyment of property, resulting in the spoiling of the environment. that we want to recognize this as a fundamental principle.

Mr. Chairman, this takes away nothing, to respond to Mr. McGrath, this takes away nothing from Section 31. It adds to it a commitment which Canada has already bound itself to in

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international law and I suggest it is inappropriate to equate the recipe for apple pie for example, with the right to a clean and healthy environemnt, or the right to safe working conditions.

These are fundamental concepts that we are talking about here. We are talking about a charter of rights and freedoms, a statement of the values of Canadians, which is going to guide us as we enter the next century, and surely that should not just include civil and political rights. It should also recognize the economic and social rights which we recognize in any other statements of fundamental human rights including the Universal Declaration on Human Rights and the International Covenants to which Canada is a signatory.

So, Mr. Chairman, I would like to conclude by quoting from one of the great Canadian poets who said on this subject that “the trappings of democracy hang loosely on an emanciated body politic”. Mr. Chairman, that was Frank Scott, a distinguished Canadian who contributed greatly to the constitutional development in this country. l urge members to recognize the importance of Canada’s commitment to economic, social and cultural rights and to support this amendment. Thank you. Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson. All those in favour of the proposed amendment please raise their hands.

An hon. Member: Recorded vote. please.

The Joint Chairman (Mr. Joyal): Yes.

Motion negatived: yeas, 2; nays, 22.

[Translation]

The Joint Chairman (Mr. Joyal): I would now invite the honourable members to mvoe on to the next amendment, an amendment proposed by the government party.

[Text]

I would like to invite Mr. Ron Irwin to move the next amendment. It is the amendment numbered G-33, Clause 31, page 9.

Le numéro de l’amendement suivant est G-33, article 31. page 9.

Mr. Irwin: Thank you, Mr. Chairman. This is a fairly straight forward amendment which we think will make our commitment towards equalization clear. I wish to move that Clause 31 of the proposed Constitution Act, 1980 be amended by striking out lines 16 to 22 on page 9 and substituting the following:

(2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

I would now like to call on Mr. Corbin.

[Translation]

Mr. Corbin: Mr. Chairman, I move

That Clause 31 of the proposed Constitution Act, 1980, be amended by striking out lines 16 to 22 on page 9 and substituting the following:

[Page 72]

[Translation]

“(2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”

Thank you, Mr. Chairman.

Senator Tremblay: On a point of order, Mr. Chairman.

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

Senator Tremblay: I raise this point of order only because I am convinced that the intent of this amendment is exactly the same as what I am going to suggest. I only want to clarify the language and I would not want to start a debate on this before asking the mover if he would not be ready to amend his amendment himself to add the term “annuels” after “palements” in the French version.

It has been taken for granted in our country for 30 years that equalization payments are made equally. Since I think this was only an oversight, I raised this point of order to give the mover the opportunity to modify the text accordingly. I do not see any problem in that.

The Joint Chairman (Mr. Joyal): I will invite the Honourable Minister of Justice to comment since this is not a question of reconciliating the French and the English versions, but of amending both texts.

Mr. Chrétien: Mr. Chairman, it is not a question of reconciliation. I do not see the usefulness of this addition, since it could complicate things if we decided one day to make payments quarterly.

We recognize here one principle, that is the equalization payments. For the time being, they are made yearly but there could be changes. This concerns the administration and is not a question of substance. So, I do not think it is necessary, it would not mean anything or it could bring complications.

That is why I do not think it is necessary. It could be useful as well as useless.

Senator Tremblay: I will not debate this question.

The Joint Chairman (Mr. Joyal): Very well.

Senator Tremblay: I wanted to make a suggestion. but I see that you can foresee problems as far as the administration is concerned. I could not see any concerning substance.

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

The Honourable David Crombie, on the proposed amendment.

[Text]

Mr. Crombie: On the amendment by Mr. Irwin. Yes, thank you very much. Mr. Chairman. I actually just have one or two

[Page 73]

concerns that I would like to raise with the Minister and get his assurance, if I could.

Through you, Mr. Chairman, Mr. Minister on one or two other occasions I have asked you to look at this section in relation to social programs and their continuance, particularly as it relates to universal programs and the ability of the federal government to apply national standards.

Given the amendment by Mr. Irwin, it is entirely possible that we would see social programs or the financing of social programs done through equalization. that is, equalization grants. What that most often means is that the federal government as a consequence loses any kind of policy control with respect to them. I do not at all suggest any plot to do so. I am hoping that the Minister has been able to satisfy himself that—let me put it another way, when the government went into EPF in 1977, all sides now agree that whatever the reasons for the change at that time one consequence for social programs was that the federal government lost control or its control was diminished in terms of its ability to enforce standards. That is true in medicare, it is true in post-secondary school education, and I know that many members of your own staff as well as ministers of your own cabinet feel that the 1977 EFF was in error in a certain way as it relates to the inability of the federal government to impose national standards.

This becomes even more so, even more surely a danger as you pull the funding of social programs into equalization payments.

So, for example, there are two questions that I am specifically concerned about. The Canada Assistance Plan is one which requires that there be universal application of that program. Are you satisfied that the federal government’s ability to impose national standards on its program will not be impaired when you fold funding for social programs into equalization.

Mr. Chrétien: EPF is financial agreement, the way I understand it, between the federal government and the provincial government to compensate the provinces for what they call, EFF, the Established Program Funding, that is what that means. So we have up to five years or seven years or ten years, whatever, felt that these programs have achieved a certain maturity and it was within the minds of the provinces, no feed for us to keep checking them, so in fact we just transferred the payments because those programs existed at that time.

Eventually as time goes by, the divorce between our financing and the programs will some day disappear and it is your preoccupation but it is not what we are dealing with here, basically.

When you gave a block funding you lose the control and eventually the national standards disappear because the idea when we established those programs were to establish a minimum. We did not have constitutional power but the spending power to do it, and because the spending power was criticized very much because they were telling us that we were imposing our own priorities to the provinces, we said we would do that for a period of time and after that they will administer it themselves and we will compensate them.

[Page 74]

So I think that, yes, when you do that type of transferring of money you lose the national control, and it was the view expressed by the provinces, it was the flexibility that we did in 1977, we never received any recognition for it, but asking for more flexibility. But it is a fact of life, I know, that you are losing the so-called national standard because you transfer the authority to the supposed perfect provincial governments, and sometimes you pay the consequences. That is the reason we do, when you want to have seven principles or ten principles.

Mr. Crombie: Sir, in answer to my question, will the federal government lose its power or diminish its power to enforce national standards for social programs. The answer to that question is yes and, secondly, that you are willing to accept that. Is that what you are saying?

Mr. Chrétien: It is not exclusive, we could try to re-establish national powers using our spending powers, if we want. This is transferring money to give the capacity to the provinces in relation to the other provinces on the base of revenue to be able to extend a certain level of services that they themselves decide.

But suppose we wanted to establish a new program. Suppose medicare did not exist today. We could establish medicare with our spending power but it would be criticized as establishing a priority to the provinces.

So it is always a dilemma. We could use our spending powers, emergency powers, if need be, if it was to become an emergency, to re-establish national standards, but it will be in the mind of a lot of people a massive intervention in provincial jurisdiction and I can see that the eyes of Senator Tremblay becoming brighter, the longer I speak.

Senator Tremblay: I have just been watching intently.

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

Mr. Nystrom: Very briefly, I want to surprise the Minister by saying that I commend him for his amendment in this area. The original draft of course did not refer to equalization payments, and I was very critical of that when I spoke in Parliament back in October, because I was afraid because of some advice I was getting that unless we enshrine the principle on equalization payments, there are other ways of doing it and there could be massive intervention into the affairs of some of the provinces. Of course, this Minsiter would never do that but someone in the future could.

But now what he has done is he has enshrined the principle of equalization payments. I commend him for that; it is a wise move; something that has been going on in this country for a long time; a good thing; it promotes equality, it has some basic socialistic values and how can I be opposed to that. I commend the Minister for it and . . .

Mr. Chrétien: There is one flaw in it, it is bad for national planning.

Mr. Nystrom: I want to point out to the Minister that a large part of national planning involves strong regional economies that are a complement to the national economy and

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unless we have strong regional economies we are not going to promote very effectively national unity in this country.

So I think it is a good mix and allows the provinces that are poor to do some good regional planning and good provincial planning to put them up to a level much closer to provinces like Alberta and Ontario. It is a good amendment.

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

Mr. Nystrom: And Saskatchewan.

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

Mr. Hawkes: Thank you, Mr. Chairman. I am concerned about precision and we have been discussing in this corner whether or not the French version is identical to the English version. It would seem to us that the French version requires that the payments be made to the provinces and that the English version is capable of other interpretation.

Mr. Chrétien: The provincial government is able to talk to the government in English.

Mr. Hawkes: Mr. Minister. in English I do not think it makes it clear that the payments must be made to provincial governments. It makes it clear as a residual provincial governments must have sufficient revenue to undertake the work but it is not clear that the payments must be made to the provincial governments. It could be done in some other fashion.

Mr. Chrétien: I do not understand the question, because Parliament and the Government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenue. How can you ensure that provincial governments have sufficient revenue if you send the money to someone else?

Mr. Hawkes: With respect. Mr. Minister, the way this is worded you could in fact provide money, for instance, to school boards, that would relieve provinces of an obligation for expenditure and leave them with sufficient revenue to cover off other expenditures.

If you were able to change the wording to, say, make equalization payments to provincial governments to ensure that they had the revenue, if that is your intent then I suggest to you that that is more precise and unequivocal, that the present wording is to some extent equivocal?

Mr. Chrétien: I would not accept any amendment because we have negotiated those words all summer at many meetings with the provinces. Perhaps you are right. you could have a good argument. but this has been the objective of fantastic negotiation. it is a text that has been proposed to us by provincial governments and I am pleased to put it there that way.

Mr. Hawkes: Is it identical to the French, then? That is my last question. I suggest that it should be.

Mr. Chrétien: I think that in the French text it leaves the same implication et je lis:

[Page 76]

Le Parlement et le gouvernement du Canada prennent l’engagement de principe dc faire des paiements de péréquation propres à donner aux gouvernements provinciaux des revenus suffisants.

However, if we were taking your idea that you give the money to the school boards so that will leave the provincial coffers with more money, it is exactly the same impression you have in reading the French text like the English text.

There is no discordance there, I think you have a good point. but because of the nature of this amendment I would rather keep it as it is.

[Translation]

Senator Tremblay: Just a brief comment without prejudice following my intervention. I think we agree on the intent which is clearly that the provinces should have their revenues.

Mr. Chrétien: That it is.

Senator Tremblay: There might be a little flaw in the English text that I did not find in the French text.

Mr. Chrétien: It is also in the French text. It could be interpreted that payments can be made to school boards and, consequently, it would leave more taxation room or . . .

Senator Tremblay: l think we agree on the substarice, but . . .

Mr. Chrétien: Mr. Hawkes is right, but l do not want to change it.

Senator Asselin: As far as the wording goes, for my part, I understand the French text as saying that payments can only be made to the provinces. Otherwise, it would not be revenues to the provinces, it would be only a reduction of expenses.

Mr. Chrétien: That is the reason why we brought about this modification, because according to the other text we did not necessarily have to make payments to the provincial governments.

Senator Tremblay: Maybe in a discussion we could dissipate any doubts concerning the English text, as for the French text, there is not any.

Mr. Chrétien: l think Mr. Hawkes’s comment is right. He is right that it could have been more precise. On the other hand, I will not accept any amendment for the reasons l gave because that is the text negotiated with the provinces and recommended by the provinces.

Senator Tremblay: is it time for me to intervene according to the list?

The Joint Chairman (Mr. Joyal): l was just going to ask you to do it, Senator Tremblay.

Senator Tremblay: For once, l’ would like to say without any reserve that I am glad to see a government proposition.

However, I will explain why it is so.

In the preceding texts at many occasions during the years, emphasis was put on the aspect of expenses corresponding to

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government obligations. It is that which has created confusion concerning joint programs.

I want to note that the merit of the amendment is precisely to differentiate between equalization and joint programs.

Joint programs are agreements on specific expenses corresponding to the definition of a joint program, while it is presently clearly stated, I think, that these measures aim at the revenues of the provinces for assuming whatever type of responsibility they have to assume according to the Constitution, without mentioning one aspect or the other of this exercise.

I am glad it is clear in the governments proposition because I think this funding of the two levels of government is one of the added values to our federal regime which is specific to us, even throughout the world.

It started during the last war in a particular fashion and in the following years, little by little. things shaped up and the result is this text. It is the result of a federal experience of which we can be proud as a federal country. And it is the reason why, without any hesitation, I will vote for the proposed amendment which represents considerable in-ways in relation to the first text we had in front of us, the original text, because now things are clear, it is an equalization system which takes form in payments to provinces in the exercise of their jurisdiction while giving them the freedom to use equalization payments according to their priorities when they do receive some.

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

The Honourable Senator Austin.

[Text]

Senator Austin: Thank you, Mr. Chairman.

I wanted to put a couple of questions to the Minister and I will just wait a moment until he. . .

The Joint Chairman (Mr. Joyal): May I invite the honourable Minister of Justice to listen to the question that the honourable Senator Austin wants to address to him.

Senator Austin: Minister, as you well know, the province from which I come. British Columbia, wanted or submitted to you a different system for equalization payments and were prepared to see the federal government, as I understand it, make payments to individuals for the credit and account of the national equity balance, and I wonder whether you could tell us why the federal government is not availing itself of that kind of flexibility in providing services to Canadians but is limiting itself to those services through provinces?

Mr. Chrétien: We are not having any of that kind of flexibility because we are too flexible, We bend under pressure from provincial governments.

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Most of the provincial governments wanted what we have here but we bought first the idea of the British Columbia government and they were the only supporters of that, we have accepted that, but all the representation that have been made here by all the Premiers who came to testify and so on, and sensing the mood of the Committee we felt as a government that the proposition of the British Columbia government was more flexible, but being that much flexible we could not agree to that flexibility.

Senator Austin: l appreciate very much the meaning of your answer. My concern is, and I think it ought to be the concern of all members of the federal Parliament, that the rule in services that a federal Parliament provides to citizens of Canada everywhere ar not easy to see in the eyes of those citizens whent the agents of service are always the provincial governments. One of the problems of our credibility in federal process is that often the provincial governments are quick to take the credit for those things that are done by federal members of Parliament and I do not mean just on the government side; I mean that members of Parliament on the opposition, too, do not get the recognition for their work that they deserve.

However, you accepted the representations of 9 of the 10 provinces and you feel foreclosed on this question of principle.

Mr. Chrétien: Absolutely, l have the same problems that you have, the best kept secret in any provincial government is the federal contribution, and for example, in my riding not long ago there was the building of a HLM housing program with 95 per cent of the money being provided through the federal government and they did not invite me for the soil turning ceremony. I went anyway. So after the provincial MLA turned the soil once, I took the shovel and turned it nine times to show the rapport between the two governments.

Senator Austin: Mr. Minister, a question on a different subject.

I notice in Clause 31(2), that it is the Parliament and the Government of Canada that have the commitment to the principle of making equalization payments. i wonder why it is that the provinces themselves are not accepting the same commitment.

As you well know, we have two or three have provinces and these have provinces tend to change from decade to decade. but the federal government is going to have to obtain the revenue for equalization and distribution from some source, and yet our wealthier provinces have no obligations to support that particular equalization program.

Mr. Chrétien: The problem would be, Senator Austin, it is a national program and it has to be delivered by the national government, but of course it should be recognized too that it is not recognized that in order to be able to achieve the goal that is written now in the constitution we have to have the money to do it, and the money is not collected in the poor provinces for the poor provinces; you have to have the power to collect the money where the money is. Everyone agreed to that but we

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need the tools, and so where is the wealth, we have to go and ask them to share.

Senator Austin: I hope it is not one more case where we have the responsibility and somebody else has the wealth and we have, as Mr. Mackasey has just said, a balkanization of the total program.

Thank you, Mr. Chairman.

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

Honourable James McGrath.

Mr. McGrath: Just a supplementary question to the minister, Mr. Chairman, regarding one of the questions posed to him by Senator Austin.

It is my understanding that most, if not all, provincial governments include equalization payments in their budgets. There is no attempt made to hide the amount going into any provincial exchequer from the federal government on equalization and I do not think the minister meant to imply that but I just wanted to correct the record.

Mr. Chrétien: No, it might be written in a big book when it is coming . . .

Mr. McGrath: No, it is in the budget.

Mr. Chrétien: The illustration might be that I have never seen in any newspapers around Canada that today we have received our cheques from the federal government. It is accounted for—and I do not blame them, it is natural. It is frustrating for us to have the responsibility of raising the money and mailing the cheque and get no credit, but it is the nature of the system and I do not complain. When it is visible I think that they could show a little bit more, what should I say, generosity in those matters, like when we pay through equalization to regional economic expansion programs; I have been 18 years a member of Parliament and you have been here longer than that, yet lately they opened up a road in my riding that was paid 60 per cent by the federal government and I was not invited. No, it was crazy in some ways because I would have my own opening now for 60 per cent of the road.

An hon. Member: Take it back.

Mr. Chrétien: And I will do that right in the middle of the next provincial election.

Mr. McGrath: I just want to keep the record straight, keep the Minister on a straight and honest path, because there are provinces that pay into the equalization program. It is not a federal handout by any means, but I think the point has to be made and re-emphasized that I do not believe there is a province in the country that is a recipient of equalization that does not state it and state it quite clearly in its budget every year, and provincial budgets are well advertised and released with great fanfare.

[Page 80]

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

I see that honourable Senator Tremblay wants to ask another question. I would invite him to be brief because it is a supplementary on a supplementary.

[Translation]

Senator Tremblay: Thank you, Mr. Chairman.

I will be very brief. I would not dare to go on too long, since for once, as I pointed out earlier, well, I do not want to come to the minister’s assistance, I would like to pursue his approach. I think that the concept before us, the institutionalization or the constitutionalization of equalization payments results in two problems. On the one hand, it is consistent with the general philosophy of the day which is for different regions of the country to share through what I would call federal mediation.

I do not always agree with this mediation on other points, but in this case, I do agree.

Secondly, this problem has been raised by the highest authorities of the country; the problem of responsibility to the electorate, of accountability. By enshrining equalization payments in the constitution, the federal government will have an obligation to account for those payments to the electorate.

From this point of view, I think that this shows progress over the previous situations whereby equalization payments were simply a matter of federal legislations; they will now become a federal obligation. which, in my opinion, will balance the situation. This is consistent with the general philosophy of sharing, without prejudging future allocation of funds.

On that, I think that I disagree radically with Senator Austin’s approach to the principle itself.

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

The Honourable Minister of Justice.

Mr. Chrétien: Just one thing; I would like to make a comment.

[Text]

I would like to talk to the honourable James McGrath who says it is very well known. I would like to ask him just one question: How much money, on that very question, the Newfoundland government is receiving a year? It is so very well known, you said, so very well advertised; how much?

Mr. McGrath: Oh, that is a frivolous question, Mr. Chairman. How could I be expected to answer that?

Mr. Chrétien: 50 per cent of their budget is paid through equalization payments.

Mr. McGrath: Well, to single out my province, Mr. Chairman, in that way is not quite cricket and if the minister would like me to answer him perhaps he might lay it on the line for the other provinces, too, otherwise I refuse to answer it.

An hon. Member: It is not federal government money anyway.

[Page 81]

Mr. Crombie: Where does the federal government get the money?

Mr. McGrath: Exactly.

The Joint Chairman (Mr. Joyal): l will certainly invite the honourable members at this part of our discussion to refrain from any references or allusion that might raise other debate than that which is already under consideration.

I see that honourable Senator Muir would like to speak on that issue.

Senator Muir.

Senator Muir: Thank you, Mr. Chairman.

Just in response to the matter that was raised by Senator Austin as to who gets credit, whether it is the provincial government or the federal government, and the response by the Minister.

My heart goes out to the Minister and to Senator Austin, l feel terrible about that, not getting enough credit, I really do; but to come down to a lower level, the many, many years I spent as a member and often worked, as he commented and said members of the opposition and the government worked on many projects and never got credit for it, many, many times the government did not even send an invitation to the member concerned in opposition to be present.

However, like the Minister, l was always there like the bad penny and I got a seat on the main platform and I made sure l was there.

So at the risk of offending our socialist friends, may l use a biblical quote: “Physician heal thyself”.

Mr. Nystrom: We have more preachers and priests than any other party.

Senator Muir: That is not where they should be.

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

I understand that honourable members are ready to vote on the proposed amandment.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to come back on Clause 31.

[Translation]

Mr. Nystrom, a question before voting on clause 31.

[Text]

Mr. Nystrom: Just a very short comment. Coline Campbell made the interjection when l was winding up a few remarks a few minutes ago about Saskatchewan and I would like to pick up on a few from Bryce Mackasey who often says a word or two about his province.

You say that Saskatchewan is a good example of why Clause 31 is an excellent clause and why it should be enshrined in the constitution. We were in our province on the receiving end of equalization payments for many, many years and we are still actually on the receiving end but it is basically phased out and I do not want to quote any figures that are carved in

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stone, but one of the officials told me yesterday that Manitoba now receives around $400 million a year and Saskatchewan around $40 million a year, and there was a time, of course, when we received as much and perhaps even more than Manitoba.

It is partly because of equalization that our province has been able to build up an infrastructure and do fairly well. Now, of course. we are also blessed with resources, and excellent government. of course, but equalization played a role and I just wanted to point out that that is a good example of a job well done and it is a good example of a province that has benefited, and l hope we will have four, five or six other examples like that in the remainder of this century.

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

Clause 31 agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 32, but the Chair would first like to draw their attention to the fact that on Clause 32 there are three amendments to be introduced and one of them, the amendment numbered G-34 is an amendment in relation to aboriginal peoples and I wonder if that amendment or that clause should not be stood as the other clause of the proposed Charter that deals with aboriginal peoples, and that the honourable members have agreed to stand until further discussion in the process of our meeting?

Honourable Senator Austin.

Senator Austin: Mr. Chairman, it would be agreeable to us if it stood until Monday afternoon along with other clauses on aboriginal matters.

Clause 32 allowed to stand.

Mr. Chrétien: It is 4 o’clock. We have the Métis and Nonstatus Federation here, and the Inuit Tapirisat and the National Indian Brotherhood altogether. Perhaps we can move on something else, but I would like to come back at 5 o’clock and dispose of it today.

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

Mr. Epp: Mr. Chairman, I feel we should do some organization at this stage, because Senator Austin has given me a proposal.

I am pleased that the Minister has proven our point, and I would like to say that this weekend, as matters might move fairly quickly, that any party around the table should be able to call a short recess to confer, within reason of course. That is a normal way of proceeding.

If it would help the Minister to take a recess at this time, that is acceptable to us.

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

Mr. Nystrom: I would agree with that too.

Mr. Chrétien: Fifteen minutes.

Mr. Epp: Whatever is agreeable to you.

The Joint Chairman (Mr. Joyal): I would like to invite the Minister to sit with us for at least 30 seconds to allow Mr. Nystrom to state his position on behalf of his party.

Mr. Nystrom: Mr. Chairman, I just want to make it clear that I support Mr. Epp on any short recess; also, if the issue concerning aboriginal rights has evolved far enough to produce them this afternoon, then I think we should proceed this afternoon. I see Peter Ittinuar nodding his head. If that is the case with all parties concerned—and by that I do not simply mean all political parties here, but the aboriginal people as well—then we must proceed.

The Joint Chairman (Mr. Joyal): Then I would suggest that we adjourn for 15 minutes.

(Pause)

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

We would like to resume consideration of the proposed resolution on Clause 24.

On Clause 24—Undeclared rights and freedoms.

The Joint Chairman (Mr. Joyal): Mr. Nystrom on a point of order.

Mr. Nystrom: On a point of order, Mr. Chairman. You will recall at 4 o’clock I made reference to the fact that we had previously agreed to stand this clause, but that if it was all right with all parties, I would agree to going ahead.

I have had an opportunity to check with my party. I did not have a chance to be at the meeting of the caucus this morning, because it was held while I was here.

But it has been confirmed that the understanding of my caucus is that they wanted to start the aboriginal amendment before we discuss them here. The understanding is that they will be doing that at a caucus meeting at 12:30 Monday afternoon. That is my preference.

But I have informed the Minister of Justice that it is in order to go ahead at this time, and it is his decision to do that.

For the record I wanted to say what the understanding of our caucus was in terms of the timing.

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

The Honourable, the Minister of Justice.

Mr. Chrétien: Mr. Chairman, we have come to the concIusion on this issue of aboriginal rights that despite the difficulties surrounding this matter in terms of legal definition—difficulties that were being created for the government, after a series of negotiations and discussions involving a lot of people, we have come to accept a text which would entrench into the Canadian constitution the recognition and confirmation of the aboriginal rights of the original citizens of Canada.

Due to the dilligence of the deIiberations—and I did not expect it to come today, but when we have a momentum we should try to maintain it; that is why I am pleased on behalf of

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the government to say that the aboriginal rights of the aboriginal people of Canada will be entrenched in the constitution.

There are two or three texts which will affect two or three clauses in the charter and in the constitution.

Before I proceed any further, I would like to thank the National Indian Brotherhood, the Inuit Tapirisat, the Métis and Nonstatus Federation of Canada for their work.

I would also like to thank my colleagues who have worked very dilligently in the matter. I am also glad to see here one of my predecessors, Mr. Warren Allmand who has devoted a lot of time to that issue: and, of course, my colleague, John Munro who. inside the government, has been very useful under very difficult circumstances.

This afternoon, we have the privilege of having with us . . .

Mr. MacGrath: I am sure the Minister would not want to leave out the former distinguished minister of Indian and Northern Affairs!

Mr. Chrétien: I am going in that direction. I am coming to that.

At this table, we are fortunate to have, of course, Mr. Epp who has served as a Minister of Indian and Northern Affairs—an extremely difficult post; he has served, not unfortunately for him, but fortunately for us, very distinctively. I would like to thank him for what he has done on behalf of the people who live there and receive services from this department.

I am sure all honourable members of this Committee will permit me to ask Peter Ittinuar, who is from the Inuit People of Canada to read, on behalf of the government, the first resolution.

I would like to ask the member for Nunatsiaq-my Inuit has not improved over the years—to read, as one of the Inuit persons serving in Parliament, to read the first motion on behalf of the government.

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

Mr. Ittinuar: Thank you, Mr. Chairman.

I would like to thank Mr. Chrétien for allowing me to do this.

I am indeed honoured to move on behalf of the government

that the heading preceding Clause 24 and Clause 24 of the proposed constitution act, 1980 be amended by (a) striking out the heading immediately preceding line I and lines 1 to 6 on page 8 and substituting the following:

General

24. The guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate or derrogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

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(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

25. The guarantee of this charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

And (b) renumbering the subsequent clauses accordingly.

I would like to ask my friend, the Minister, to read in French, because I cannot speak French, unfortunately.

Mr. Chrétien: I would like to invite Mr. Warren Allmand to read it in French.

The Joint Chairman (Mr. Joyal): I understand I have the consent of the honourable members of this Committee to invite the honourable Warren Allmand.

[Translation]

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

Mr. Corbin: Mr. Chairman, I certainly have no objection to Mr. Allmand performing this duty, with unanimous consent, but you should mention that he is not an official member of the committee that could cause procedural problems. But if we have an unanimous agreement, I agree as well.

[Text]

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

Mr. Epp: Mr. Chairman, Mr. Corbin does not have to worry about our raising any procedural argument.

The Joint Chairman (Mr. Joyal): That is why I sought the unanimous consent of honourable members.

The honourable Warren Allmand.

[Translation]

M. Allmand: Thank you, Mr. Chairman.

This is the same amendment moved by Mr. Ittinuar. It is moved:

[Text]

Que l’article 24 du projet de Loi constitutionnelle de 1980 et la rubrique qui le précède soient modifiés par

a) substitution à la rubrique et aux lignes 1 à 5, page 8, de ce qui suit:

«Dispositions generales

24. Le fait que la présente charte garantit certains droits et libertés ne porte pas atteinte aux droits ou libertés—ancestraux, issus de traités ou autres—des peuples autochtones du Canada, notamment

a) des droits ou libertés reconnus par la Proclamation royale d’octobre 1763;

b) des droits ou libertés acquis par règlement de revendications territoriales.

25. Le fait que la présente charte garantit certains droits et libertés ne constitue pas une négation des autres droits ou libertés qui existent au Canada».

b) les changements de numéros d’article qui en découlent.

[Translation]

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

The honourable Jake Epp.

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[Text]

The Joint Chairman (Mr. Joyal): Merci, Mr. Allmand.

The Honourable Jake Epp.

Mr. Epp: Mr. Chairman, as a matter of procedure, it would be my recommendation that we deal with Clause 24 and 25, though read together as separate entities.

The Joint Chairman (Mr. Joyal): Certainly the Chair is ready to entertain such a suggestion.

[Translation]

The Honourable Senator Tremblay.

Senator Tremblay: This is just a minor technical question.

It seems to me that in the French text we should say «il est proposé que l’article 24 et l’article 25». It seems to me that something is missing. Is it not?

The Joint Chairman (Mr. Joyal): Senator Tremblay, that is just a procedural question.

There are other resolutions or amendments coming up on Clause 25 of our proposed resolution. So at this stage we do not need to worry about Clause 25 of the original proposed resolution. We will deal with it eventually, and we will renumber all the clauses accordingly.

Senator Tremblay: in the English text, then, the words “Clause 24” should be removed.

The Joint chairman (Mr. Joyal): No, we absolutely have to keep . . .

Senator Tremblay: But it is repeated twice.

The Joint Chairman (Mr. Joyal): No, that is because in the first instance it refers to the title of Clause 24 and in the second instance to Clause 24 itself.

Senator Tremblay: I see!

The Joint Chairman (Mr. Joyal): You see, I will explain to you in a simple manner what we intend to change: we propose that the heading preceding Clause 24, in French «La rubrique qui le précède» . . .

Senator Tremblay: Undeclared Rights and Freedoms.

The Joint Chairman (Mr. Joyal): Exactly, and Clause 24. All right? You see, it is logical because there is a distinction made between the title and the clause.

Senator Tremblay: Logic is always hard to perceive.

The Joint Chairman (Mr. Joyal): l was going to quote to you from Boileau: “Whate’er is well conceived is clearly said, and the words to say it flow with ease”.

Senator Tremblay: it is just that we have to find the thought through the words.

The Joint Chairman (Mr. Joyal): Fine, thank you.

[Text]

Perhaps our friends in the audience might have been wondering what we were discussing with Senator Tremblay; but we have settled our own procedural problems and discussions at this point.

[Translation]

So I would now like to ask either the Minister of Justice or Mr. Ittinuar to move the amendment before I ask other speakers to take the floor.

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Mr. Chrétien: Well, there is of course another amendment to come, number 31, which is more or less the official proclamation. I would once again like to ask Mr. Ittinuar to read the English version and Mr. Allmand to read the French.

The Joint Chairman (Mr. Joyal): Fine.

[Text]

Mr. Ittinuar.

Mr. Ittinuar: Thank you, Mr. Chairman.

Again, I am extremely honoured to move that the proposed constitution act, 1980, be amended by . . .

The Joint Chairman (Mr. Joyal): I am sorry, but the copy of that amendment has not yet been circulated, to my knowledge. I would like honourable members to wait until we have additional copies for all members.

Mr. Epp: Mr. Chairman, could we not proceed this way in that Mr. Ittinuar could proceed with this amendment—that is, to proceed with Clause 24?

Mr. Chrétien: Might we not proceed with Clause 24 and then come back to that?

The Joint Chairman (Mr. Joyal): That is why I suggested it would be much easier to go step by step, rather than having a bunch of amendments which might bring confusion into our debate.

l would like to invite honourable members who wish to address the Chair on Clause 24 as amended, to show their interest.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, prior to my speaking, may I ask whether the Minister has any comments to make first by way of explanation? if that is the ease, I think he should have the first opportunity.

Mr. Chrétien: No, I have no statement to make at this time. You may go ahead.

Mr. Epp: Mr. Chairman. in speaking to the amendment, 1 would like, on behalf of our party, to endorse the position which has been put forward in this amendment.

Last Tuesday, when we presented to this Committee and to the Canadian people our position on aboriginal rights. we said the following—and i think it is important that it be quoted:

We support the government’s amendment to Clause 25 concerning native rights. We recognize the need for further discussions and refinements of aboriginal and treaty rights.

The the next clause will be really addressing the next clause. We welcome the Prime Minister’s commitment to include

Canada’s native people in the constitution as a priority in the next round of constitutional discussion.

After making that statement on behalf of my party, there were discussions and for those who think this is an easy matter and that we had tried to cop out, that was not the case.

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In fact, the reason we put those words in was that we knew that the only way in which progress could be made on this topic would be if there was all-party agreement—all-party agreement with the aboriginal peoples; and that there was no point in coming forward with an amendment which might enjoy of one group and, in fact, by its very enjoyment of support in fact derogate or abrogate rights held by another group.

So, there were some very good reasons why we chose to take that course of action, and I think it is important that the record should show that that was the reason it was done.

We said also, Mr. Chairman at that time that we believed that while the recognition was finally given—the recognition of aboriginal rights and treaty rights and the Proclamation of 1763, those three matters—that further refinements were needed and they would only be arrived at through further discussions and, I believe, Mr. Chairman, Parliament is a strange and wondrous place at times, those further discussions have led us to this juncture.

Sometimes those discussions take a long time, and sometimes they move very quickly. Obviously, this time they moved very quickly.

So, I want to say to you, Mr. Chairman, on behalf of our party, that these words are in recognition of our position and also a position that we not only can defend, but in fact we believe can be given to other Canadian people.

I think also, Mr. Chairman, there is no point in forgetting what has happened. If I can speak personally for one minute, for those of us who have filled the position of the Ministry of Indian Affairs and Northern Development-and I wish to thank the Minister of Justice for his kind words—those of us who have had that responsibility or presently have that responsibility, while it is not recognized by a large portion of the population of Canada, I believe it is nevertheless one of the most difficult portfolios in the Cabinet, in the government of Canada.

I say it for this reason: I do not see anywhere where a Cabinet post demands greater sensitivity, not only to the people you are serving. but to the relationship you have to them and, as importantly, the impression other Canadians have of the people you are to serve.

I say it quite openly, Mr. Chairman, it is a difficult role very often to convey to other Canadians that if justice is to be done in the country it must also be done first to Canada’s aboriginal people.

I think it is important that Canadians recognize that, if justice is to prevail, then justice must prevail on all grounds.

Having said that, Mr. Chairman, I feel in terms of the agreement among the aboriginal people themselves tonight, between the National Indian Brotherhood, the Inuit Tapirisat of Canada, and the Native Council of Canada, that that achievement in itself is one to be recognized; because that is an

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achievement where peoples with different backgrounds and similar backgrounds and different visions of their past and similar visions of their past, have had difficulty in agreeing.

It must also be said that that also has been a difficulty, not only within the department, but also between the three groups I have mentioned.

Mr. Chairman, I look forward to the day when the aboriginal peoples of Canada, in an economic sense and in every other term, will be able to play a full role and to take up their full partnership in the Canadian family.

If I can be administrative, just for one minute, I believe the Department of Indian Affairs and Northern Development will also have to change its role more as a facilitator, rather than seeing its role in a paternalistic sense.

The native people of Canada are mature and if given the opportunities, I believe they make the contributions to Canada which I personally am convinced they are quite capable of making.

Having said that, Mr. Chairman, I want to make one other point. l mentioned this to the three leaders during the negotiations this afternoon.

Mr. Chrétien: May l invite the three leaders to come and sit right here, to join me.

Now, they are my advisers!

Mr. Epp: l was about to say, Mr. Minister, if you were their adviser, I could see them leaving; but I am sure they will not.

Mr. Chairman, I want also to say to the leadership of the aboriginal people that the agreement they have struck will go a long way in correcting many of the wrongs that some of us have seen. When one looks at Section 9124, one sees the responsibility that the federal government had to Indians and to Indian lands. There are still cases today, though some Canadians might not be aware of it or be willing to hear of it, cases today where treaties that were signed and lands that were given have still not been fulfilled. Nowhere is that more evident than in parts of the country from which I come.

So, l want to say that this Clause will not end that work or fullfil the deficiencies which still exist.

I only have one other point, Mr. Chairman, and that is—and I had just started mentioning this prior to the leaders coming to sit behind the Minister; that is, that I believe that should be a separate section, rather than it simply being in the Charter.

Now, I have circulated Clause 31. l have not had time to study it. I do not know if the import of it will do exactly that, but at a quick glance it might do it.

I hold my comments until that amendment is before us.

I thank you, Mr. Chairman.

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

[Page 90]

Mr. Ittinuar: Thank you, Mr. Chairman. I am at a dead loss for words at the moment. I would like to speak after we have moved Section 31, if you do not mind.

The Joint Chairman (Mr. Joyal): Certainly, Mr. Ittinuar. The Honourable Warren Allmand.

Mr. Allmand: Mr. Chairman, and members of the Committee, I want to start by thanking the Minister for agreeing to the amendment which he has put forward today and to thank all members of the Committee for their support. It truly reaffirms my faith in democracy and I am sure the faith in democracy in many of the native peoples of Canada. I have been campaigning for this kind of thing for five years but they have been campaigning for over 100 years, and I think it is a great day, and I congratulate the Committee and the government for doing this.

You will remember that 37 of the 93 witnesses that appeared before this Committee recommended the entrenchment of aboriginal rights and treaty rights. Of those 37 only 16 or 17, that is quite a number, but 16 or 17 were groups representing the Indians of Canada, the Inuit and the Metis. What was significant was that a lot of other widely based, broadly-based, groups of Canadians supported this movement and I believe what the Minister is proposing today and what we are accepting has broad support in Canada and the Canadian people want to right the injustices of many, many years.

I think what is also significant, Mr. Chairman, is that we reached this agreement on this important subject here in Canada. The Indian peoples and the Inuit peoples in their frustration, and the NCC, have felt from time to time that they had to go to Britain to plead their case or to the United Nations and to the Bertrand Russell Tribunal in Europe; but what is significant is that we have been able to settle a major difficulty, a major constitutional difficulty in this country by the political process, by witnesses appearing before this Committee, by presenting their evidence, by sound argumentation and by continual lobbying, and l use that word in its best sense, by sensitizing the members of this Committee and the members of Parliament to this issue, and we settled it here.

Now, the Minister has invited Del Riley and Eric Taguna and Harry Daniels who sits behind him but he knows that there are many leaders across this country who have been working for a long time on this in all the provinces, in the north, and you have met many of them before the Committee here. They spoke with great passion and great commitment; and I am pleased to support this amendment.

Now, as far as I am concerned. I can give my 100 percent support to this charter and the patriation.

Miss Campbell: You would have anyway.

Mr. Allmand: Oh, I do not know. To the 59 articles I might have, but I would not have to that 60th article but now I can feel much better for it. l do not think there is much else to say at this time and I think Peter Ittinuar will want to speak as one of our original peoples of this country. Thank you.

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The Joint Chairman (Mr. Joyal): Thank you very much, the Honourable Warren Allmand. I would like to invite on behalf of the NDP Party…

Mr. Allmand: And Sykes Powderface also, he is the Vice-President of the National Indian Brotherhood and when Del was going all across the country doing all the things that a President has to do, Sykes was working very hard on this. There is Mark Gordon too, and so many others here that are here sitting in the audience, Elmer Derrick and a whole lot of them. Anyway they have been before this Committee, you know them well now, and you will probably be seeing them again, not on this issue, on another one.

The Joint Chairman (Mr. Joyal): Thank you very much, Honourable Warren Allmand. I see that Mr. Peter Ittinuar would like to intervene at this point. Mr. Ittinuar.

Mr. Ittinuar: Thank you, Mr. Chairman. I am moved enough that I am at a less for words but l will try and tell people around the table that this is a momentous moment for aboriginal peoples of Canada. As Mr. Allmand has said, this has confirmed my belief in the democratic system in Canada. I think perhaps also that having these amendments here proves that when the former ministers of Indian Affairs and Northern Development, the Honourable Jake Epp and the Honourable Warran Allmand as well as the present Minister of Justice say that we have all worked towards this, the fact that they sit around this same table and these amendments are before us proves that none of them were liars, and l believe they spoke the truth when they say that.

A lot of us have sold our souls for these things and l will not tell you to whom, but there were many people as Mr. Warren Allmand has stated who were involved in the process towards the wording and the substance of these amendments.

It has been said many times that there were many factions and many people wanted this and many people wanted the other and there could never be an all party agreement or even agreement amongst the different aboriginal peoples of Canada, and there are differences. We attest to this fact by the fact that the three leaders sitting behind us call themselves Métis, Inuit and Indian. However, as aboriginals there is a commonality that I think we should all by virtue of these amendments all recognize.

Mr. Chairman, I am extremely pleased to thank the present Minister of Justice for having had the—my english is not so good either, Mr. Chairman, having had the isuma, great presence of mind, that is the best that I can come up with, to undergo negotiations and very trying negotiations.

The politics of Canada almost denied the existence of these amendments but I believe democracy won out in the end. This is proven again by the mere fact of the existence of these amendments. l am not going to commend any one party around this table for having worked the hardest, because l believe all parties tried at one time or another extremely hard. I myself have not moved on behalf of the party I am in allegiance with but on behalf of the people I represent. but I do not say that there is a party who has not tried. l merely say that all of them have been receptive equally when l have tried

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to work on behalf of the aboriginal peoples and I believe the aboriginal peoples would say the same thing.

Mr. Chairman, from the bottom of my heart and on behalf of all the aboriginal peoples of this country, depending on whether we pass it or not of course, I thank everyone here very much.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): The Honourable Minister of Justice.

Mr. Chrétien: Before you vote, it gives me great pleasure because like everybody else, I have been associated with this probably longer than anybody involved in that and there are a lot of people who are not here today who started that along the way. For example, Senator Williams, he is not here today. He was one of the wise men I met in the Indian community when l started in 1968 and many times he gave very good advice. Probably the proudest group l met at that time was the Nishka who fought their case alone in court, refused government money, collected among themselves to establish how proud they were of their race, their background and so on and to render justice to many.

For me it is a great satisfaction, but let us go and vote it, it is unanimous, do not take any chances, let us pass it before 6 o’clock.

Senator Austin: There is many a slip twixt the cup and the lip.

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

Mr. Epp: Mr. Chairman, if you are ready to vote, just on a technicality to make sure we are right, you circulated earlier Part II, rights of the aboriginal peoples of Canada, Clause 31. That is a new clause and it has a new heading. I much prefer the heading to the “General” under Clause 24. l do not think “General” applies, frankly, and I am wondering, Mr. Chairman. whether in fact the first part of Clause 24 should not be in Clause 31. In other words, the list of enumeration of the rights, whether that should not be under the title “rights of the aboriginal peoples of Canada”. I am just looking at the sequence and the logic of it for later interpretation.

You can see, Mr. Chairman, i am doing it on the spur of the moment. l have not developed it totally, but I would like some comment on that from our drafters.

The Joint Chairman (Mr. Joyal): Yes, I will ask either Mr. Tassé or Mr. Jordan to give explanation on that because at first sight the Chair should say that it makes sense that those two sections be grouped or sequential so that we have some kind of. as my honourable colleague, Senator Tremblay would say. some logic in that and not a scattered charter of different sections. I wonder if Mr. Tassé could give an answer or provide some information on that very question.

Mr. Tassé: Yes, Mr. Chairman. If you look at the old resolution you will see that on page 3, Schedule C, Part I. the Canadian Charter of Rights and Freedoms and then there are some titles that succeed themselves up to “general”. Then

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under that subheading, “general” you have a number of interpretation clauses, mainly that apply to the Charter, that either are necessary to integrate, help in the construction of the provisions of the charter; and Clause 24 that we are dealing with in effect is such a provision and the language of it is to the effect, as you read it, the guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate, so in fact it comes as a rule of construction for the charter in its application to the rights of aboriginal peoples. So I would say that on a technical basis the sections should remain where it is as a part of the charter itself.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Tassé. The Honourable Jake Epp.

Mr. Epp: Should these sections then not also be included in Clause 50, namely Clause 31, or is that already included in Clause 50?

Mr. Tassé: There is another provision that the minister intends to propose to the committee that l think has not yet been distributed which will deal with that Clause 31 and how it can be changed and how it can be amended.

Mr. Epp: On that word, I will accept the minister’s word, because at the moment it is unclear.

Mr. Tassé: That clause is being typed and should be available at any moment.

Mr. Chrétien: It will be moved later on. It is related to the amending formula and will be next to the amending formula. I have to say that it will be coming and will have to be approved too because it is all part of the package and we have to provide how those rights that will be now entrenched into the constitution might be amended in the future. That cannot be left alone and there was probably some negotiation there, but it has to be defined. Otherwise the rights might be needed to be amended by any other part of the constitution and this has to be ratified when we come to the amending formula.

Mr. Epp: The minister’s word is good enough for me.

Le coprésident (M. Joyal): Merci, l’honorable Jake Epp. L’honorable sénateur Tremblay.

Senator Tremblay: Thank you, Mr. Chairman. I want to be clear. I do not want to change anything in the substance there but as I understand what we are doing now. the charter of rights being Part I where we are introducing in the resolution in the constitution act of 1981, a new part entitled “rights of the aboriginal peoples of Canada.”

The point I wanted to make is that it would seem to me that it would be more consistent to identify the rights in that new Part II and that could be done in 31(1) in saying at the end of the sentence there, recognize and affirm “the aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” including, and then the words “as the enumeration” which is in Clause 24 because the identification of those rights is there in the proposed amendment. l think it should be in Clause 31(1). This being said, then, taking account of the fact that Part l is a charter, then we have to say “the rights which are guaranteed there do not affect the rights recognized otherwise in Part II.

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Mr. Chrétien: I understand the problem because there is a special section which will be the section on rights of aboriginal people of Canada.

Senator Tremblay: It is more than a section, it is a part.

Mr. Chrétien: The point is that before we said that the Charter of Rights shall not affect these rights, and that was in the negotiation a very important element, so i think that although the logic might go with Mr. Tremblay but the evolution of that file, this has been agreed upon and the definition has been agreed upon, and so on, and even if there would be a lot of logic in what you say, I know what you are thinking because in your position you might just have the Bill of Rights and go along and agree to all the rest. but it is relevant, when we discussed the Bill of Rights this was debated with those rights that were given to all Canadians who were not to create any problems in relation to those rights of the aboriginal people of Canada.

Senator Tremblay: May I just add a word, Mr. Chairman.

About the substance, there is no problem Let us vote on the substance and if you feel that it might be better…

Mr. Chrétien: Let us vote the motion, and if there is some problem, we will see if there are some problems, but let us vote it now.

The Joint Chairman (Mr. Joyal): What the Chair would suggest to the honourable members would be to address themselves to the paragraph of the proposed amendment No. 24 of the amendments as we have now identified as G-29, Clause 24, page 8.

Everybody has a copy of that amendment, I suppose, and you will remember that the reading that we have of that amendment referred to two paragraphs of the proposed Charter, Clause 24 and Clause 25, so what the Chair would like to do is to invite honourable members to vote on 24 first and then go on the other amendments, the one that has been circulated, numbered G-32-2, new clause following Clause 30, because those two sections are in relation with aboriginal rights.

While you will notice on Clause 25 the Chair has been notified of another subamendment introduced by the Conservative Party pertaining to cultural community and is in fact another subject than the one dealing with the aboriginal rights, and I think it is common agreement that—we should first deal with aboriginal rights and then address ourselves to the question of multiculturalism.

Is it clear for everybody? Do I need to repeat?

[Translation]

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

The Joint Chairman (Mr. Joyal): Certainly.

[Text]

I would like then to call the vote on the proposed amendment as introduced by Mr. Ittinuar on the clause of the motion that reads:

Aboriginal rights and freedoms not affected by Charter

[Page 95]

General

24. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that may be acquired by the original peoples of Canada by way of land claims settlement.

Amendment agreed to: Yes. 24; Nays, 0.

Clause 24 as amended agreed to.

The Joint Chairman (Mr. Joyal): I would like to ask the honourable Minister of Justice for the next amendment.

Mr. Chrétien: I would like to move on Clause 31, Clause 31 is the clause of entrenchidng the confirmation of the aboriginal rights in the constitution. We were on a technical clause before and now we are going on the real declaration, more or less. So I will again ask Mr. Ittinuar to propose it and Warren Allmand to second it in French

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

Mr. Ittinuar: Thank you, Mr. Chairman. I have the great honour to move that the proposed constitution act, 1980 be amended by (a) adding immediately after line 2 on page 9 the following headings and section:

Recognition of aboriginal and treaty rights

PART II

Rights of the Aboriginal Peoples of Canada

31. (1) The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition “aboriginal peoples of Canada”

(2) In this Act. “aboriginal peoples of Canada” include the Indian, Inuit and Métis peoples of Canada.

and (b) renumbering all and clauses accordingly.

I would like to ask my friend, Mr. Allmand in French.

subsequent parts

The Joint Chairman (Mr. Joyal): Honourable Warren Allmand.

M. Allmand: Il est proposé

Que la Loi constitutionnelle de 1980 soit modifiée par

a) adjonction, suivant la ligne 2, page 9, des rubriques et de l’article qui suivent:

«Partie II—Droits des peuples autochtones du Canada

[Page 96]

31. (1) La présente charte confirme les droits, ancestraux ou issus des traités, des peuples autochtones du Canada».

(2) Dans la présente loi, «peuples autochtones du Canada» s’entend notamment des Indiens, des Inuit et des Métis du Canada».

b) les changements do numéros de partie et d’articles qui en découlent.

You will note, Mr. Chairman. that there was an amendment to the copy as distributed which said in Clause 31(1) “La présente charte”; the good French should read “La présente loi”. l was instructed by the law officers of the Crown and I read it as “La présente loi confirme”.

[Translation]

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

The Honourable Senator Tremblay.

Senator Tremblay: Mr. Chairman there is a difference between the French and English version.

In the English version there is nothing which corresponds to the word “notamment” when the definition of aboriginal peoples of Canada is given. I think this changes the meaning.

When you use a word like “notamment” amongst others you expect a longer enumeration than the one we are given. I would like to know what the specific intent was of the drafters.

Mr. Tassé: Mr. Chairman, with all respect to Senator Tremblay, I think that the French version is consistent with the English one. ln English the word “includes” is used and the following enumeration is not exclusive.

Senator Tremblay: The meaning is the same.

Mr. Chrétien: The meaning is exactly the same.

Mr. Tassé: ln French by using the words “s’entend notamment” it is meant . . .

Senator Tremblay: So it must be my ignorance of English language that made me ask the question.

The Joint Chairman (Mr. Joyal): With all due respect, although I am not a linguist, it seems to me that the word “includes” is not limitative when there follows afterwards an enumeration of persons or things referred to.

Senator Tremblay: That is in the English version.

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

[Text]

Do I see other speakers before I call the vote on the proposed amendment? Mr. Manly. with the consent of the honourable members of the Committee.

Mr. Manly: Thank you very much.

I believe that this amendment calls for a small celebration when it is finally included in our charter; and when the charter

[Page 97]

as part of a new Canadian constitution is brought home, then I believe it will call for a large celebration.

I would like to join others in commending the Minister for bringing this amendment forward, I believe that it marks a very significant day, not only for the aboriginal peoples of Canada, but for all peoples of Canada because it means that we are not only saying to Great Britain that we want to end any vestiges of colonial status that remain, but also that we are not interested in looking on the aboriginal peoples simply as subjects to be colonized, that we want them to take their full place and their full stature as members of Canadian society.

The one thing, Mr. Minister, I hope that the government will not give with one hand and take away with the other, I want to assure you that members of our party will be looking very carefully at the amending clause that is brought forward for this section. I think it is very important that these rights not only be included in the constitution but that they be properly protected.

I would like to commend my friend, Mr. Ittinuar, for moving this, and Mr. Broadbent, the leader of my party, who has done a great deal of work on behalf of our party, which has had for many years now on record our desire to have these rights recognized.

So, Mr. Minister, I simply hope that now we have taken this small step we will go on and take the final step.

One question: I presume that the phrase that this “includes Indian, Métis and Inuit peoples”, that that leaves open the way for nonstatus Indians also to be included in having their rights recognized?

Mr. Chrétien: That is exactly why we have not fixed—we had a kind of open definition rather than a closed definition.

Mr. Manly: Would the word “Indian” include nonstatus Indians?

Mr. Chrétien: Yes, it is all aboriginal peoples. We have decided that we were not to use this generic term.

For me, when I started on that problem, I could not even use the word “aboriginal titles”. It was something that was in legal jargon, if I can use that, was prohibited and I had so many problems with it because I could talk about the Royal Proclamation of 1763 but I could not refer to aboriginal rights and even if we were speaking about the same thing. and I had a lot of problems with it. I sweated in many, many meetings because this word was not part of the Canadian legal system.

Now it is there, we are confirmed and I am waiting and I will make a comment after it is voted on.

Mr. Manly: Mr. Chairman. could I just close by reading some words that were presented before us, first of all from Mr. George Watts of the Tribal Council on Vancouver Island. He said:

How we exist as a people and how we relate to each other as people lies in your hands.

[Page 98]

And Mr. James Gosnell of the Nishka Tribal Council said:

Mr. Chairman, it is quite clear at this time that our destiny is in your hands, the hands of the Joint Committee. Our aboriginal title to the Nishka land must be entrenched in the constitution before patriation. That is our position at these hearings. Without the title, there can be no negotiation; without negotiation, there cannot be a just settlement of the land question; without a just settlement, the Nishka people will have absolutely no economic base upon which to survive.

I believe that with this amendment we are going a long way to meeting the questions that these people came before us with and I would like to thank members of all parties who supported it.

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

Honourable Senator Austin.

Senator Austin: Mr. Chairman, I, too, want to associate myself with the incredible accomplishment of Canada that we are seeing this afternoon in this Committee, the coming together of the natives, the aboriginal people, the Indians, the Inuit, the Métis, in a common policy, and the joining in that common policy of the government and of the Progressive Conservative Party and of the New Democratic Party. I think it proves just how strong, how practical, how pragmatic, but particularly how just and equitable Canadians can be and are.

A long time ago in my province we had quite different attitudes towards the aboriginal people. When I went to law school, and I was consulting John Fraser who was at law school at the University of British Columbia with me, a few years ago, in the British Columbia Evidence Act when we were students there appeared a section, section 12, dealing with aboriginal evidence and it said:

In any proceeding over which the legislature has jurisdiction it is lawful for any court, judge, to receive the evidence of any aboriginal native or native of mixed blood of the continent of North America or the islands adjacent thereto being an uncivilized person destitute of the knowledge of God and of any fixed and clear belief in religion or future state of reward and punishment.

Et cetera, et cetera, It is a long trip to take and yet the Canadian society has been able to take that trip.

I want to mention a person who is not here and I would not want him forgotten. I came down—excuse me, Mr. Chairman. I am just as emotional or as Peter Ittinuar about this. I came down here in 1963 with Art Lang and he had a very deep interest in the Indian people, the aboriginal people of British Columbia, and when he became Minister of Northern Affairs and Natural Resources in 1963, he became really one of the driving forces in the improvement of the position in Canada of the native people, the Inuit first of all, and then when he became Minister of Indian Affairs, their condition.

[Page 99]

I was first introduced to all of these issues in 1963 and I really took them to heart.

Finally, Mr. Minister, I want to say that your achievements as Minister of Indian Affairs are of course well known and you were outstanding but you never did anything to match what you have done today.

Thank you.

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

Mr. Epp: Mr. Chairman, just a word or two regarding possibly more the occasion than the specific amendment. I notice, Mr. Chairman, you have been giving that leeway in the last few moments.

I think for all of us, as we will look at this day and our participation in it we will be honoured that we were able to participate but I also want to go back, that in terms of human existence time can be very short and it is but 20 years ago when the people sitting in this room representing the aboriginal people of Canada did not have the right to vote and participate as full Canadian citizens, and the right honourable John Diefenbaker gave them the right to vote through an Act of Parliament where Parliament agreed at that time, and I believe since that period it gave the aboriginal people an opportunity not only to make their case as full citizens of the country, but also that there were rights and agreements and treaties that they had signed, their forefathers had signed which were important for them and also for the country at large.

So, Mr. Chairman, I think there is only one point I want to make, and that is in the clause itself aboriginal people is finally defined and I think that in itself is an important step, that it will not be left to courts to decide who is and who is not, but in fact it will now be decided through this clause that the aboriginal people in fact include the three groups that we have always referred to as aboriginal, namely the Indian, Inuit and Metis people.

Thank you.

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

Mr. Nystrom.

Mr. Nystrom: I also want to associate myself with the tremendous accomplishment that has been made here at the Committee this afternoon of affirming the treaty and aboriginal rights of our aboriginal people, and I feel very strongly about this, as other people, and Senator Austin referred to when he was in law school and the tremendous discrimination or law against the aboriginal peoples.

I grew up, Mr. Chairman, on a small Saskatchewan farm that was adjacent to one Indian reserve and a mile from a second Indian reserve, and I always went to a school where we had Indian people and Métis people, and so I feel that my whole background from my very early childhood has been one where I have always been associated with the aboriginal people of this country.

[Page 100]

I want to say that I think what we are seeing today is a tremendous accomplishment, that the rights of these people must be enshrined in our constitution, that we owe a great debt to the founding nations of the country, the founding peoples of this country, the aboriginal peoples and, as has already been said, it was not many years ago when they did not even have the right to vote in one of the most advanced and democratic societies in the world.

So I want to say that I am very, very pleased to associate myself and our party, to see all three parties come together and do something that is exceedingly worthwhile. I think we have just concluded a major chapter in the history of our country and what we are doing today is opening a new chapter, a new chapter that still has a lot of content to be put into it in terms of facilities and services and jobs and opportunities for the aboriginal people to make them really true and equal with the other peoples of this country.

Mr. Chairman, this is a major first step in the new chapter of what I hope is a very exciting book in the new Canada of the 20th and 21st Centuries.

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

The honourable Minister of Justice.

[Translation]

Mr. Chrétien: Mr. Chairman, I would like to make a short statement.

[Text]

I would like to thank everybody who has been involved, I think it is probably an extremely important moment at this moment that we vote that and it is almost ironic but I would like to tell the Committee when I became Minister of Indian and Northern Affairs in 1968, the first time I was made a Chief it was by the Micmac of New Brunswick and they gave me a title, it was Glooscap. So I am Chief Glooscap.

And according to the legend Chief Glooscap, the real one, was a Micmac chief and one day he was mad and he decided that he had to settle something with her Majesty the Queen, so he was a fantastic chief, he went to Prince Edward Island and he rowed Prince Edward Island up to England to be able to settle with her Majesty the Queen.

So I will be doing the same trip. It will be easier, it will be in a plane, and I hope that that one does not crash either.

Thank you.

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

Mr. Ittinuar: Mr. Chairman, there is one person I do not think any of us have mentioned and there are many that I would like to but I have neither the time nor the memory. My mind is very confused right now.

However, there is one person I would like to mention that I think perhaps whose patience has been tried, but that is the Prime Minister of Canada, without these approval we would not be doing this today.

[Page 101]

I personally, and on behalf of the aboriginal peoples, would like to thank him and together we will build a great nation.

Thank you.

Some hon. Members: Hear, hear.

The Joint Chairman (Mr. Joyal): So I see that honourable members are ready for the vote.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): Before I call 6 o’clock, l see that all honourable members might be concerned about what they will eat tomorrow during our intermission at 12:30 p.m. The cafeteria will be open at 8 o’clock tomorrow morning until 3 o’clock in the afternoon and we will be sitting at 9:30 a.m. tomorrow morning, so until then the meeting is adjourned.

[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.


Other Issues:

Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14* 15 16 17 18 19
20 21 22 23 24 25 26* 27 28 29
30 31 32 33 34 35 36 37 38 39
40 41 42 43 44 45 46 47 48 49
50 51 52 53 54 55 56 57

*On Order — Available Soon


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