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 5 (14 November 1980)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 5 (14 November 1980).
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HOUSE OF COMMONS
Issue No. 5
Friday, November 14, 1980
Senator Harry Hays
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays
Serge loyal. M.P.
Representing the Senate:
The Honourable Senators:
Representing the House of Commons:
(South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons.
On Friday, November 14, 1980:
Mr. Tobin replaced Mr. Lapierre;
Mr. Lapierre replaced Mr. Tobin.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Donahoe replaced Senator Asselin.
MINUTES OF PROCEEDINGS
FRIDAY, NOVEMBER 14, 1980
The Special Joint Committee on the Constitution of Canada met this day at 9:40 o’clock am., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Connolly, Donahoe, Hays, Lamontagne, Lucier, McGrand, Petten, Roblin and Tremblay.
Representing the House of Commons: Messrs. Beaty, Bockstael, Campbell (Miss) (South West Nova), Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Tobin.
Other Members present: Messrs. Allmand and Hawkes.
Witnesses: From the Canadian Human Rights Commission: Mr. Gordon Fairweather, Chief Commissioner and Mrs. Rita Cadieux, Deputy Chief Commissioner.
The Joint Chairman, Mr. Joyal, presented the Third Report of the Sub-Committee on Agenda and Procedure which is as follows: .
Your Sub-Committee met on Thursday, November 13, 1980 and agreed to make the following recommendations:
1.—That in relation to the question of time sharing and recognition by the Chair in the 10 minute round, the present practice of alternating between the government and opposition be continued, and that the Chair exercise discretion to arrive at a proper balance.
2.—That the Sub-Committee appoint Messrs. Austin, Epp and Nystrom to study and report to your Sub-Committee on the following questions:
a) scheduling of witnesses
b) research staff.
On motion of Miss Campbell (South West Nova), the Third Report of the Sub-Committee on Agenda and Procedure was concurred in.
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 ResoIution 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).
Mr, Fairweather made a statement and answered questions.
Ordered,—That the document entitled—Presentation by the Canadian Human Rights Commission to the Special Joint Committee on the Constitution of Canada, November 1980,—
be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC—1”.)
At 11:03 o’clock a.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Friday, November 14, 1980
The Joint Chairman (Mr. Joyal): First, before resuming our work, I would like to inform the hon, members that are participating in our work and the public who are listening to it, that there are about a dozen of those little listening devices that are missing and they are worth at least $200 each, so we would ask your co-operation and ask you to hand them back when you leave so that other persons that follow and participate in our work can use the same translation services that you have used yourselves.
I would read you the Third Report of your Subcommittee on Agenda and Procedure and following that, I will ask you to comment on it, modify it as the case may be and adopt it.
(See Minutes of Proceedings and Evidence)
The Joint Chairman (Mr. Joyal): Are there any comments. questions or a motion to adopt the said report?
Miss Campbell: I so move.
Motion agreed to.
The Joint Chairman (Mr. Joyal): Miss Campbell.
So the report is adopted.
We will resume our work and our witness this morning is the Honourable Gordon Fairweather, Chairman of the Canadian Human Rights Commission.
Mr. Epp: Excuse me, Mr. Chairman.
Le copresident (M. Joyal): Yes, Mr. Epp.
Mr. Epp: Just before we begin with the witness, it is my experience that we are having difficulty receiving the transcript of the Committee. I do not know if other members are having that difficulty. We are having that difficulty, and I see there is a nodding of heads right around the table. Can we possibly spend just a minute or two on that because I think it is important for our work.
The Joint Chairman (Mr. Joyal): I am really happy that you raised that issue because I was informed yesterday that Senator Trembiay, for instance, requested and expected to receive the transcript in the early morning, as I had informed you previously that the honourable Members of this Commitlee would receive it.
I was informed yesterday that there was a breakdown in the machine, in the technical equipment, and that is why yesterday you did not receive it, but I am informed by our clerk that the transcript is all ready or will be available as soon as possible after our meeting ends, in the small back room where the Cquipment is located.
Mr. Epp: Does that mean, Mr. Chairman, you are saying that we have to pick up the transcripts in that room. Like last night, for instance, they would have been available after the meeting last night?
The Joint Chairman (Mr. Joyal): Exactly. That should be the procedure and that is the way we are working, so that
when you leave the room after our meeting you can go in the back and pick it up or make sure that they are available in the forthcoming hours, but at least certainly before we continue our hearing so that you make sure you can work on it back in your office to prepare yourself for the next meeting.
Mr. Epp: Thank you.
Senator Connolly: Could I ask the Chairman a question as to what the delay is in receiving the transcript?
The Joint Chairman (Mr. Joyal): Certainly, Senator Connolly. Usually it is 48 hours, but as I mentioned in answer to Mr. Epp, the transcript, the electronic transcript is available at the back so that means that if you want to come back on a point that was raised and you want to think it over and have additional consultations or prepare yourself for the next meeting, you can always go to it and do a proper study.
So if there are no other issues I would like to invite the Honourable Gordon Fairweather, and welcome him on behalf of the all the honourable Members of this Committee and I would like to request him to maybe introduce the people who are with him this morning.
Mr. R. G. L. Fairweather (Chief Commissioner of Canadian Human Rights Commission): Well, Senator Hays and Mr. loyal, and Senators and Deputies, on my right is Rita Cadieux, the Deputy Chief Commissioner, and we have identified two—there are various members of the staff of the Canadian Human Rights Commission who have been helping get this presentation together but two should be specifically identified: Martha Hynna, the Secretary-General, and Linda Poirier, who is a special advisor on policy.
May I proceed?
The Joint Chairman (Mr. Joyal): Oh, yes.
Mr. Fairweather: The Canadian Human Rights Commission approaches this appearance with a great deal of exhilaration and, in a personal way, with envy for the task that is before this Committee and this Parliament because the task, I suggest, is a noble one.
Our thesis is that the Charter of Rights and Freedoms are there to protect the weak against the strong, to protect those who have no power from those who have, and that in any contest the Parliament of Canada would expect the Canadian Human Rights Commission to be on the side of the downs, and after three years experience we know that there are many in Canadian society who have no power.
We also recollect that although we strive for excellence, and this is a bit of preaching here, we strive for excellence, we must not let the best become the enemy of the good, and I would like to recall a very important speech made by Senator Edward Kennedy not very long ago in New Orleans, when he was discussing the Criminal Code. the new federal Criminal Code of the United States . . .
Mr. Fraser: That is something that he knows something about.
Mr. Fairweather: Indeed he does. It is a very important document which is being hazarded not by what I might call extremists on the right, it is being hazarded by those people who want perfection, who want every “t” to be crossed and every “i” to be dotted, and the 10 years work in reform of the
federal Criminal Law of the United States is now at hazard because of that fact,
This Committee meets with the backdrop of the Third European Security Conference in Madrid to review the Helsinki Accord. Certain signatory states are resisting a discussion of how states have fulfilled their obligations under the Human Rights part of that accord, so that 1 think that fact makes your work, if I may say so, even more pertinent.
In 1976 all provinces agreed that Canada should ratify the Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights that flowed from the Universal Declaration and now become the International Bill of Rights. Thus, the Charter of Rights and Freedoms you are considering now is not an isolated act of domestic draftsmanship; rather, it owes its origin to Canada’s international undertakings and commitments and it seems to me that we Canadians have become too accustomed to debating issues out off from world themes and international goals.
The next thing I want to say may be indelicate, but there are many deputies and senators who know me and are friends and I hope they will not be surprised or offended. I am going to say it anyway.
Some say, not at this table, but some say that Westminster may not want to include a Bill of Rights in a new constitution for Canada because, the United Kingdom has not got one. That argument is specious. The United Kingdom has been a signatory to an international treaty since 1951; the European Convention for the Protection of Human Rights and Fundamental Freedoms and the decisions of the European Court are binding. It just so happens that I brought, because I got from England yesterday, from a young Canadian student, a sheet of examples of cases that have been decided by the European Court impacting upon the law of the United Kingdom.
Now, before the wonderful staff who are here have a collective heart attack I better get into that part of the speech that has been approved by all the Commissioners. The rest is ex-cathedra.
The Commission appeared before a special committee of Parliament on the 7th of September. 1978, it was in this very building, and made some specific recommendations and supported the principle of an entranched charter of rights in a new constitution for Canada. We continue our strong support of that principle and I have polled all commissioners on this point, all eight commissioners.
Our support for entrenchment has been reinforced by a recent Human Rights Tribunal decision which found that the Canadian Human Rights Act did not have primacy over the Income Tax Act. The Tribunal remarked that recourse may have been available to the complainants if a constitutionally entrenched Bill of Rights had been in place. We face the prospect of having to dismiss a number of complaintsvinvolving discriminatory legislative provisions because of this Tribunal decision and those complainants now have no where else to turn unless their rights are entrenched.
While urging the entrenchment of the Charter of Rights, we believe it to be our duty to suggest that worthy as the goal may be, the instrument you have before you as a means of accomplishing this goal is seriously flawed. We are troubled by the language of Clause 1 which, in its present form, raises fundamental doubts about just how serious the committment is to reform. Those are strong words but you will hear them, I am sure, again and again from witnesses who come before this Committee. The language used departs from that to be found in domestic constitutions of many modern states but what is even more significant is it departs from the European Charter and the international Bill of Rights ratified by Canada, because the language in Clause 1 is unique, it has never been tested. On the other hand, jurisprudence is building up which explains the language of other domestic and international charters. It is in our opinion foolish to turn our backs on a useful body of jurisprudence.
As well, the language seems to us to be dangerously broad. We know you will seriously consider recommendations for a more careful wording of Clause 1.
Now, to get specific about Section 15, the non-discrimination rights section and the one that has most implications for us in the work you have given us.
The list of grounds presented in that section is incomplete. In particular, no promise of equality under the law is made to the disabled. We must give this undertaking to the disabled that they are entitled to equal rights, not to do so is to perpetuate stereotypes and attitudes that are more crippling to the disabled than any handicap. Not to do so because of arguments about the financial costs involved in opening up our society to the handicapped would also be wrong. Costs are not relevant to the guaranteeing of the right to equal protection of the law.
We ask you to change Section 15 of the Charter to a general proscription of discrimination with no grounds listed, as suggested by the Minister of Justice for Canada in his July document. a much better formula for protecting against discrimination than what has come before your Committee in September.
Senator Connolly: Mr. Fairweather, would you say that again. The first part? I did not hear the reference.
Mr. Fairweather: Well, the first part was that was suggested in July, when the Minister of Justice for Canada started his cross country crusade, was a general prohibition against discrimination. We would prefer that to what you have before you now, which is an incomplete list. I suppose you would have the July formulation, if not you have ways of getting it.
We ask you to change Section 15 of the Charter to a general proscription of discrimination with no grounds listed. Failing that, I believe the list should be expanded to include physical and mentally handicapped, marital status. situation de la
famille, sexual orientation and political belief. And may I remind the Committee that this is the non-discrimination section that I am dealing with, that having an inclusive list does not thereby say that the Canadian Human Rights Com mission or Parliament is making any statement about sexual preferences or political beliefs, or so on, it is saying that people should not be denied employment opportunities because of these beliefs. Sometimes this is mixed up and I get letters from people saying we are advocating a certain lifestyle or a certain preference. It is not my business to advocate, or my colleagues. You would rightly be outraged if we were in the business of advocating lifestyle.
The charter of rights should contain an explicit reference to the rights of women. We suggest adding the following unequivocable principle:
this charter guarantees the equal right of men and women to the enjoyment of the rights and freedoms set out in it.
Scholars will know, and deputies and senators will know this is not special language, it comes from international treaties now ratified by Canada.
A preamble to the charter surely should be added referring to the International Bill of Rights as evidence that Canada is part of a larger world.
Many States documents have this, many that I have examined getting ready to appear before you today have in the preamble some reference. After all, Canada is, by that act of ratification, part of the larger world.
Now, I have left a paper because it seemed to us, Madam Cadieux and me, that you would want some time to question. I do not expect you to flatter me by keeping us here all weekend and I am not going to cry in my pillow if I do not get equal time with Ministers of the Crown, but let me mention at this point some personal concerns about legal rights and about laws of evidence.
I looked at the document that way, too. I cannot escape my past; I do not want to escape my past as a lawyer and as a former parliamentarian.
Legal rights as defined in this Charter are seriously deficient. They contain unnecessary qualifications. It is as if somebody is frigthened of something. The rights that ought to be protected, for instance, by Sections 8 and 9 may be seriously circumscribed by the qualification except on grounds and in accordance with procedures established by law.
What you should ask witnesses is what this phrase means. If you ask me, I will tell you I have not the faintest idea what it means, and that is why I worry about it.
Why is it thought necessary to add it to the clauses protecting legal rights? If it is to restrict the rights set out. surely you are entitled to know the nature and scope of the restrictions contemplated.
The Joint Chairman (Mr. Joyal): I am sorry, Mr. Fairweather.
Senator Lamontagne, on a point of order.
Senator Lamontagne: When we come to legal rights, you speak personally and not on behalf of the Commission?
Mr. Fairweather: I would hope that many commissioners and others would agree, but it is a personal view. I am only going to take a moment or two on this and I use as an excuse, if you need an excuse, that I have fussed and worried about the laws of evidence of this country for 15 years and it is grossly out of date and I am shocked that Section 26 could appear in an otherwise pretty progressive document.
This concern is with Section 26. The Section has obviously been drafted by those provincial officials who wish to perpetuate outmoded laws of evidence. It should be re-cast. In its present form it clouds all that part of the charter that deals with legal rights.
The Law Reform Commission and other professionals including scholars and practitioners will understand the genesis of Section 26 and most will share my discomfiture at seeing it as part ofa charter of rights and freedoms.
It is being said, and I am ending here, it is being said, do not change the draft charter. Wait until the constitution is patriated and then amendments can be proposed.
Can any senator or deputy or member of parliament seriously believe that you will have a chance to address the issue of rights and freedoms soon because of the agenda that faces our country.
I really do believe your goal is a worthy and a noble one, and I hope that the Committee, and through it Parliament, will want to seek excellence from the beginning. Why should you settle for anything less.
There is a procedure, if I remember correctly—I did prepare a statement to be tabled. It is a more exact enunciation of the principles I have been recommending to this Committee and perhaps somebody will agree, I have no status in getting it as part of your record, but surely somebody will want to do that for me; and I therefore ask for that.
The Joint Chairman (Mr. Joyal): With your permission, Mr. Fairweather, and the consent of the members of this Committee I will make sure that that statement will be circulated among the members immediately as soon as we obtain the necessary photocopies; and I will propose that it be printed in an appendix to our proceedings.
Yes, Mr. Fraser, oui, Mr. Fraser.
Mr. Fraser: Mr. Chairman, we were handed yesterday a document called “Presentation by the Canadian Human Rights Commission to the Special Joint Committee on the Constitution of Canada”. Is this the document that Mr. Fairweather refers to?
The Joint Chairman (Mr. Joyal): I think Mr. Fairweather could answer that.
Senator Lamontagne, on a point of order.
Mr. Fairweather: There are two documents. One was because I hope you think it is important that some care be taken with what I was saying, I spoke from a script except the first two or three interventions were my own. That has been tabled and then there is a legal critique that is now being tabled, I understand.
The Joint Chairman (Mr. Joyal): I think, Mr. Fraser, that is the one that you are handling presently.
Mr. Fairweather: There may have been some problem about the tabling. We have been—not quite hovering at the gates of the temple—but we have had several different times to come and whether or not we got the things tabled at the right time is certainly beyond me.
Anyway, there are no secrets in it; they are yours.
The Joint Chairman (Mr. Joyal): Mr. Epp.
Mr. Epp: Thank you, Mr. Chairman.
On behalf of my colleagues I would like to welcome Mr. Fairweather back to the Hill and also thank him for his presentation this morning.
Mr. Fairweather, what I would like to do from looking at materials that you have provided earlier, is take you to your concern of Section I of the proposed resolution. At the bottom of your presentation as well as in the accompanying documents you stress your concern about Section l. I would like to ask you from your perspective if the clause remains essentially in the form it now appears what are the technical consequences of that clause in relation to the protection of rights and freedoms?
Mr. Fairweather: They are so serious that I could not imagine this Committee letting Section l go unamended, That section as drafted would challenge, in my opinion, the rest of the charter, and I suspect somebody is going to be getting an amendment.
It is, as I said, turning our backs on the international and national jurisprudence, and it is very broadly drafted. Why we do not use the language that is well accepted now and has been ratified by Canada, for the life of me I have no idea.
This is a strong statement but I have strong feelings. I am absolutely committed to the entrenchment and the patriation and the goals. They are wonderful goals for this country at last but why not go for something better.
Mr. Epp: From your experience as a Commissioner of the Human Rights Commission, could you give us examples of if this proposed resolution had in fact been in effect with the prohibitions in Section 1, can you give us some specific examples of the restrictions it would have given or caused both to rights and freedoms and also to the Commission?
Mr. Fairweather: Yes. One was given last night, if I know correctly, by the Minister of Justice for Canada. It might be that generally accepted standards in this country for mandatory retirement, the anti-discrimination part having to do with age, could be challenged and rendered meaningless as a reform mechanism, because the generally accepted standards now are quite illiberal, if I may use that word in this place.
The generally accepted standards for Canada are to push people out at certain ages, I greeted this charter with excitement when I saw that the Government of Canada had included age, but when I see the language of Section 1, I wonder.
Another message that surely cannot be forgotten is that the generally accepted standards in Canada in 1940 and 1941 were to take Canadians whose offence was that they were of Japanese origin.
In the Wellington Street Archives last night while you were doing something else I went to the festival of the 100th anniversary of the Chinese in Canada. They came to build the railway and I am as shocked as I know senators and members are to remember that people who are enshrined and rightly, in our history were perpetrators of the Chinese Exclusion Act, the Chinese $50 a head tax act. The Chinese people in this country were not allowed to vote in a province I think until after the Second World War. It was Mr. Diefenbaker who gave the Native peoples the right to vote in the late 1950s.
I am not saying that a government that follows this one would, but it could, because those were I guess until reform came the accepted standards.
This document is to be entrenched, enshrined, as a statement to the people who have their loyalty to Canada.
Mr. Epp: Do I understand you correctly, sir, that if the document before us were to be enshrined, entrenched, that an incident like Canadians of Japanese origin and the removal of these people from various parts of Canada, their prohibition of freedoms at that time, that in fact that kind of action would still be possible under the charter in its present form.
Mr. Fairweather: I think, Mr. Epp, my duty is to warn you, and I have given some examples, age and these other offensive matters could be put in jeopardy. I am not saying they will but they could.
I think most of this charter is really a superb piece of work, but I cannot see why Canada wants to turn its back on accepted international standards and language that has been adjudicated. That is why I am being a bit fussy. It clouds the rest of a noble document.
Mr. Epp: Mr. Fairweather, you have mentioned the matter of age. I do not have to tell you, I know, that there are a number of states that are seriously questioning, for example, I just use this as an example, the validity of the removal of rights in the mandatory age of retirement at 65. A number of our provinces, Saskatchewan for example, does not have an age requirement relative to provincial legislation. Other provinces as well have either examined the question or are open to changing it.
Is it the position of the Commission that there should be no requirements and social policy, for example, such as a mandatory age requirement.
Mr. Fairweather: We appeared before Senator David Croll’s committee and suggested that there should be flexibility in age of retirement. To be 65 less a day does not make you any
different than being 65. Flexibility and medical tests for those whose continuation in work would hazard somebody is much better than an arbitrary date.
There is no doubt that when 65 was enunciated in the last century by Bismarck as part of a social policy that it was reformist. We think, and Senator Croll’s committee thought and we certainly like to hear why not. 12 per cent of our complaints are based on age.
Mr. Epp: 12 per cent out of a total of approximately—what is the gross figure?
Mr. Fairweather: 12 per cent of the some 600 cases that have fallen within our jurisdiction and gone on.
Mr. Epp: Mr. Fairweather, under the proposed resolution before us, is it possible that in its form now that the declaration of the War Measures Act in peacetime could in fact not take place?
Mr. Fairweather: I think the War Measures Act could take place. We suggest in our paper that the anti-discrimination parts of our act, many parts of the charter of rights and freedoms, not be subject to any kind of special acts in times of emergency.
I am going about this backwards, I admit. It seems inconceivable to us to think that sex or colour, any of the 9 grounds that are prohibited in our act or the ones that are enunciated in 15 of your proposed charter would be derogable because of an emergency situation.
They are not in international charters and I would hope you would want to make sure they are not in our domestic charter.
Mr. Epp: If I understand you correctly, and I am trying to understand it clearly and not put words into your mouth, I understand that you have serious reservations at this time that the War Measures Act could in fact be declared in peacetime, should this proposed resolution be in fact entrenched?
Mr. Fairweather: It raises serious doubts in my mind indeed.
Mr. Epp: What about, sir, the matter of the use of the Official Secrets Act and obviously all of us are aware of the Peter Treu case, the Toronto Sun case. Would a citizen have adequate protection under the charter if charged under the Official Secrets Act?
Mr. Fairweather: A Good advisers are wonderful.
Mr. Epp: We all need them.
Mr. Fairweather: It is suggested to me that the War Measures Act may be required but any limitations must be justifiable, in other words, defensible in court.
In regard to Peter Treu, I am as outraged as anybody else. I had thought that a government that moved to enshrinc rights and freedoms would want to bring an official secrets act into this part of this century.
Mr. Epp: Thank you, Mr. Chairman.
Mr. Fairweather: Maybe that is the next reform, the Official Secrets Act.
The Joint Chairman (Mr. Joyal): Mr. Robinson?
Mr. Robinson: Thank you, Mr. Chairman. I too would like to join in welcoming you, Mr. Fairweather, to this Committee. Obviously your record so far speaks for itself in terms of the protection of human rights in this country. I know that the Committee will listen with very great interest to the wisdom not only of yourself but also of the other commissioners who have considered this important charter.
Mr. Fairweather, I would like to join in questioning you with respect to Section 1 of the proposed charter of rights. Certainly I have expressed on behalf of my Party the very serious reservations that we have with this particular section as it is now worded.
I wonder if you could confirm that unless this Section is indeed amended that we would in fact be in violation of our requirements under the International Covenant on Civil and Political Rights and indeed, because we have signed the optional protocol, that another state could indeed take us before a tribunal of the United Nations to complain of that violation.
Mr. Fairweather: Section 1, indeed that would be my opinion. You put it very well.
Mr. Robinson: I would also like to ask you with respect to the question that was touched upon by Mr. Epp and also initially raised by yourself, and that is the actions that were taken during and immediately after World War II with respect to Canadians of Japanese origin.
Would you indeed confirm that it is at least very possible that under the charter as it is presently worded in view of the fact that it could be argued that that action was “generally accepted” at that time, that that kind of action would indeed be permitted under Section I as it is now worded.
Mr. Fairweather: Section I raises that danger.
Mr. Robinson: I would like to turn to a question I raised yesterday, namely, taking up your suggestion that one of the purposes of a Charter of Rights is to protect the weak from the strong and to protect minorities from what is sometimes called the tyranny of the majority.
Are you aware of the referendum process envisaged by this particular charter which would permit a simple majority in this land to take away the rights that now exist within this charter?
Are you aware of that provision, and do you care to comment on whether that is desirable in a Charter of Rights?
Mr. Fairweather: I am bound to confess I had not believed that the referendum mechanism could be used to deny minority rights enjoyed and contained in the charter. If the referendum process could do this, then surely this Committee would want some restriction placed upon the referendum.
Mr. Robinson: For your information. there is a provision here which, in the event of a deadlock, would permit an amendment to be made, including the taking away of rights granted in the Charter of Rights, the only requirement being a simple majority and a majority in each of four regions.
But, Mr. Fairweather, I am sure you would confirm that a regional majority does not necessarily protect unpopular minorities, such as religious or ethnic minorities?
Mr. Fairweather: That is true. I hope Messrs. Chairmen this would be understood, that it is not that we did not want to speak to the whole charter. Our own instincts were to do so. Yes, I have to remind myself several times a day that we are not alternate government.
I had thought that the referendum part, just in preparing ourselves for this appearance, (and certain parts) could well be debated by this Committee and other witnesses.
I have not paid very much attention to this, but if, as is suggested by the Member, it is a fact that a simple majority could deny a right, then the referendum section is too broadly drawn. But, surely you would want to attend to that yourselves, I gather.
Mr. Robinson: You would have assumed that it would not be possible by referendum to take away those kinds of rights?
Mr. Fairweather: I had assumed that an entrenched Bill of Rights had meaning for minorities in this country. Otherwise, what are we about here?
Mr. Robinson: Thank you, Mr. Fairweather.
Now, turning to Section 15 of the proposed charter, the section which you have emphasized in your brief, as it is presently worded would you agree that this section fails significantly to ensure equality of status for women in this country?
Mr. Fairweather: I think there are very good reasons to do as we and some others have suggested, to make a specific statement about the rights of women. If I were pressed on this, strictly lawyer to lawyer, I would like to think this is enough.
But a constitution is not only a document of lawyers, but also a document of people, poets and others, at least I hope it is.
I think the clear enunciation we have suggested that come from tested international jurisprudence would protect women better than this.
Mr. Robinson: That is a political . . .
Mr. Fairweather: We are in politics, too. We are in attitudinal change, and not in partisan politics.
Mr. Robinson: Speaking on behalf of the Commission, Mr. Fairweather, in your recommendations you have certainly said the section, as now worded, is not adequate to protect equality of status for women and you have proposed some specific amendments to that section.
Mr. Fairweather: Yes; I have done that, because I am appalled by some of the judicial interpretations which have flown in the face of what most of us believe should be the rights of women in society, and have also flown in the face of Bills of Rights that I know are only federal charters, but I can
reel them off and you know them just as well as I do- Canadian decisions like Laval and Bliss and others which are saddening to those who had hoped that the Supreme Court of Canada could do better.
Mr. Robinson: And, presumably, it is because of those of decisions on the wording as it now exists that you are making your recommendations?
Mr. Fairweather: It is because of these decisions that we must have an entrenched Bill of Rights in this country to remind the judiciary that there have been changes in Canadian society.
There is no mystery about the origin of entrenchment. It will be the statement of the Parliament of Canada about how serious they are about enshrining these rights, and the Bliss and Laval cases as well as the Indian Act cases and so on would be overturned, as they should be.
Mr. Robinson: Presumably, though, you would want to make absolutely sure that, in formulating the wording of the anti-discrimination section, or equality section, that those kinds of decisions could never again be made in interpreting Section 15?
Mr. Fairweather: Exactly; that is why we are here today, Mr. Robinson. Exactly.
Mr. Robinson: Thank you.
Turning to another important element of the Charter of Rights, I would like to ask you if there is not a section in this proposed charter, as indeed there is not at the present time, which grants the courts some power to provide a remedy where there has been a denial of rights, and l wonder if you could indicate if you believe that the Charter is sufficient to ensure that the objectives which are sought to be achieved are in fact achieved?
Mr. Fairweather: I had thought that the delivery system would be well left, if I may say so without being boastful, to commissions of the provinces and to our own commission; that the charter could not expect to be so all-inclusive, that that part would be in a charter of rights and freedoms.
Mr. Robinson: You may be aware that the special Commit tee which was co-chaired by a very distinguished member of our committee, Senator Lamontagne, and on which Senator Roblin and Mr. Beatty and others were members, specifically recommended that a charter of rights should include a provision whereby the courts could provide a remedy where there is a denial of rights so there would be some recourse for a person whose rights were violated.
Now, if, on the interpretation of this charter, it was felt that the present mechanism of appealing to the Human Rights Commission did not adequately protect those rights, presumably you would agree that there should be some strengthening of the charter to at least go that far?
Mr. Fairweather: Mr. Robinson, Mr. Chairman, I am not here to fight recommendations made by the House and Senate; nor to seem to be in conflict with the courts.
If that is the recommendation, we would be happy. I just have a view about a charter which perhaps could not be expected to cover every conceivable wrong—and if I may say so, by the way, our Commission and Tribunal decisions are registered as Orders of the Federal Court of Canada; so that is what we give you as a back-up for redress; but we would not be unhappy if you wanted to include such a mechanism.
Mr. Robinson: Now, Mr. Fairweather, I would like to turn to some of the proposed additions to the grounds of discrimination which are presently contained in Section 15.
You have proposed that there be an addition of the words “the physically or mentally handicapped”. Certainly, we, on this side, certainly support that addition.
The Minister, in commenting on this proposal, stated—and I believe I am correctly stating what he had said—that while he supported the principle of it, that there were legal difficulties in including such a provision.
I would like to ask you two questions. First of all, what proportion of the complaints to your commission concern the physically or mentally handicapped; and secondly, how would you reply to the suggestion that it is somehow impractical to include that particular ground of distinction in the proposed grounds in Section 15?
Mr. Fairweather: If I may speak to you through the Chair, Senators and Members will remember that part of our Act only applies to physical handicap in employment and not in goods, services and facilities.
Even with that restriction, I note that 21 percent of all complaints have to deal with physical handicap in employment, Mental handicap is not part of our Act now.
Some provincial commissions, to their credit, include mental handicap as part of the physical handicap definition, and it has not yet been challenged; if it came to a court fight I am not sure how successful they would be.
But we believe that, as the 1980s progress, one of the most exciting social phenomena of our times is that the physically handicapped want to be part of Canadian life and so on.
But I must get back to your question, because I seem to be launching off into the deep, but that would not be unfamiliar to anybody here.
The second part of your question had to do with legal definition. We have a definition in our Act which has caused some problems; but we are perfectly happy to leave the matter to the court to define such things. I am never one to be timid about reform; because it is hard to find.
Mr. Robinson: Mr. Chairman, just a couple of brief questions, if I may, to conclude.
First of all, I fully appreciate your remarks, Mr. Fairweather, although I understand you were not speaking on behalf of the Commission formally—your remarks with respect to the Legal Rights section of the charter, particularly Section 26.
I wonder if you would like to confirm that. in fact, this would entrench in our law the statement that, no matter how evidence is obtained, even if that evidence were obtained by illegal break-in, or by extortion, or by the use of, what may be deemed, in some circumstances, cruel and unusual punishment, no matter how evidence is obtained in this country, that the courts have no jurisdiction, no discretion, to exclude that evidence so long as it is relevant?
Mr. Fairweather: That is absolutely correct, and I must say that I am very surprised to see Section 26. I have no doubt at all where it came from. I do not know whether your timetable will allow you to hear the Law Reform Commission: but they did a Draft Reform Evidence Act, and if I may claim this, I tried it out on Parliament with a Private Members Public Bill. The law of evidence, as any lawyer in the country knows, is hopelessly outdated; and it really grieves me to think that this charter may go forward with this definition which could affect all those legal rights that you would want to have enshrined.
Mr. Robinson: Just one final question . . .
The Joint Chairman (Mr. Joyal): I am sorry, Mr. Robinson; but you fully understand that our session this morning will be brief, and I have to abide by the time schedule.
The Honourable Bryce Mackasey.
Mr. Mackasey: Mr. Chairman, I shall be very brief. I am pleased to welcome an old colleague to the Committee, whose views are quite compatible with my own.
I just want to refer very briefly to the brief Mr. Fairweather presented. He is concerned about the words invoking the doctrine of parliamentary supremacy. I think that reflects a fear that Parliament may somehow be an inhibiting factor on the courts when cases of interpretation arise and come before the courts.
I am wondering. Mr. Fairweather, if you do not feel that Clause 25 is a clear directive to the courts not to feel restrained?
Mr. Fairweather: I had thought that the bill of 1960 was a direction by the Parliament of Canada to the courts—the Bill of Rights; I had thought that the opening statement in the Canadian Human Rights Act of 1977 was a pretty clear direction to the courts. I am sorry to take so much time on Section I but it goes to the heart of a very regressive document.
Mr. Mackasey: I think this is where you should be putting your time, but the difference in this doctrine and the Bill of Rights that you alluded to is that this is the constitution, and surely the whole concept of enshrining these rights in the
constitution is to give it the weight that did not necessarily appear in legislation.
Mr. Fairweather: Well, we would certainly hope so.
Mr. Mackasey: There is another area, because I know your valued views and particularly as the lawyers here will be zeroing in on Section I, I wonder if you would elaborate on Section 6 which deals with mobility, and whether in your term of office you have come acros concrete evidence that there is indeed a growing need for some end to provincial barriers being imposed on the work force of this country, and I am thinking specifically, as a concrete example, the attitude of the province of Newfoundland in what I consider to be a discriminatory piece of legislation.
Mr. Fairweather: I am absolutely delighted to see that mobility rights are to be enshrined. I think most people in Canada, if you ask them, would think they had mobility rights. I think this is fine. I must say it is not only Newfoundland; the province of Quebec and the Construction Act also, and anyone living in this city knows the contretemps between Hull and Ottawa construction workers that exercised Premiers, First Ministers and everybody else.
I think that there are remedies within the hands of the provinces to see to it that their people are naturally selected rather than put up barriers, and I am very excited and supportive of the mobility rights. I have said so publicly, in Parliament and as a Commissioner.
If the Maritime Provinces, from where I come, had been restricted in mobility there would have been social revolution in this country and I think it is time that people remembered that. It is a very curious thing to think that now, when there is a little bit of change in prospect, barriers are to be put up. It sounds like medieval Europe. It is easier to get by modern Europe, for people to have jobs, than it is in some provinces.
We are totally committed to this principle and I think 99 per cent of the people of Canada are. If Alberta had ever restricted Newfoundlanders or New Brunswickers, what kind of a country would we have had, or the great receiving province of Ontario. It is not the receiving province now, but it was. Look, do we not have anything in common as citizens? Surely we have. If we have not that, we are just wasting time here.
Mr. Mackasey: You could wax eloquent for 15 minutes on this point.
Mr. Fairweather: Well, I cannot imagine anybody resisting mobility rights and wanting to see to it that this country is nurtured and fostered and its young people have opportunities,
and anybody who does not do that has a very narrow view of the nature of Canada. Is that strong enough, Mr. Mackasey?
Mr. Mackasey: Keep going, Mr. Fairweather. We have often agreed on this subject.
I view, through you, Mr. Chairman, that the witnesses we are bringing forward here have to express strong views because we need to be influenced, and I think that knowing the witnesses will be coming forward there will be a balance in views and that is exactly why, frankly, I am asking these questions.
Your document states the evident, again, as a result of your reputation and your organization, and that is you are obviously a very strong supporter of the entrenchment in the constitution of human rights and freedom. Now, that is not necessarily a universal view, even on the Committee. There are some that feel in good faith we should rely on jurisprudence in the British system. Could you elaborate a little there as to the reason you are so firm there?
Mr. Fairweather: But it is not the British system any longer, Mr. Mackasey. It ceased to be the British system in 1951. That is the first thing, l would say. I did not want to, because I would have to table all these clippings, and heavens, the clerks would be in trouble, but case after case, for anybody who follows human rights, the enunciation of human rights around the world, you see the British papers are filled with cases where the European Court of Human Rights has found corporal punishment. The criminal law against homosexuals in Northern Ireland. Retirement. A very famous one having to do with the London Times in the thylidomide case. The London Times won the case but the courts in Britain did not give them the costs. Where did they go for costs? To the European Court.
This battle has been going on-it was said, Mr. Mackasey, in your and my generation, I heard it all. You read the Canadian Bar Review when poor Mr. Diefenbaker was trying to put a Bill of Rights on the Statute Books of Canada and everybody, all we common law lawyers had cardiac arrest. That is all I have to say about that. It is the same argument that was not relevant then and is being put forward again today. And those who now honour Mr. Diefenbaker’s memory might remember that and read a few of the Bar Reviews.
Mr. Mackasey: Could I come to conclusion, Mr. Fairweather, that you are in favour of entrenching the rights in the constitution?
Mr. Fairweather: There may be a ghost.
Mr. Mackasey: The lights did dim there. You are very much in favour then, of entrenching . . .
Mr. Fairweather: Of course we are in favour of cntrenching human rights, We are part of the world, it is a world-wide movement. What I hope is that we can get on with it.
Mr. Mackasey: And finally, you would think that so-called jurisprudence of the British system is not functioning . . .
Mr. Fairweather: But it is not the British system, Mr. Mackasey, and it has not been for a generation the British system.
Mr. Mackasey: I hope Mr. Crombie is listening.
Mr. Fairweather: Anyone who uses the British as a model for this argument is not giving the right argument.
Mr. Mackasey: I kept repeating it in the hope that Mr. Crombie would listen.
Mr. Fairweather: I have no idea what Mr. Crombie will say. He will have the time to question me.
Mr. Mackasey: Mr. Fairweather, in your travels and deliberations and your observations in this country, without being too specific as to a province, do you feel there is a lot of legislation in the provincial domain that you would classify as discriminatory?
Mr. Fairweather: Oh, look, I have gone, Messrs, Chairmen, a long way and in a pretty outrageous way, but our act specifically asks us to keep close liaison with provinces and provincial commissions. I think we might think there are some provincial commissions that because of their long service might need new legislation, but the provinces were there first. The Province of Ontario Human Rights Act is 18 years old and that is the perspective. I am not here to indict provinces over how they protect or do not protect human rights. There are many provinces that are ahead of the national parliament. I am brave but not totally mad.
Mr. Mackasey: I am leading, Mr. Fairweather, and by the way, I have the highest regard for the Quebec Human Rights Commission who have acted twice in legislation that I am familiar with to strike down what they considered to be discriminatory clauses and I am sure it has happened in other provinces.
I am really following up on Mr. Robinson’s point, and I share Mr. Robinson’s concern that the referendum could be used, under certain circumstances in the future, to remove, perhaps, from that section protection presently proposed.
I have got to come back to my topic, however, Mr. Fairweather, that the reverse is more likely. I am hoping the day will come when the federal government would, under certain circumstances, use its role if necessary to go over the heads of a particular provincial parliament that has on its books legislation that is flagrantly discriminatory and not in the best interest of Canadians as a whole.
Mr. Fairweather: Flagrantly discriminatory legislation I do not think it will be possible when the Parliament of Canada entrenches a charter of rights and freedoms. There will be additions to rights and freedoms; several provinces may, I hope, want to go beyond but surely nobody can give less than what you are going to give them, “them” being the people of Canada.
Mr. Mackasey: By the same token, Mr. Fairweather, it is hardly likely that a scenario would develop where a federal government, regardless of party, would use the referendum to turn back the clock, so to speak, by amending that particular section in such a way that it reduces individual rights?
Mr. Fairweather: I cannot possibly imagine such a scene.
Mr. Mackasey: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey . . .
I now give the floor to the Honourable David Crombie, followed by Mr. Irwin, Mr. Crombie.
Mr. Crombie: Thank you, Mr. Chairman.
Mr. Fairweather, many of us are privileged by the fact we are able to share your views this morning. I had a series of questions but I would like to ask a question flowing from the comments you made with respect to mobility rights and the implication that Mr. Mackasey made that somehow he was opposed to a charter of rights. I hope he did not say that.
Mr. Mackasey: No. I was talking, Mr. Crombie, about references to the British system, if I may.
Mr. Crombie: Yes. I always felt that the British system did not necessarily exclude a charter of rights, and I hope you confirm that.
My question does relate to mobility rights because I, like you, think there are a number of Canadians who feel they have mobility rights and what I heard you say, or at least imply, sir, was that the charter of rights we have now before us is a clear defence against legislation which would inhibit mobility of rights and I wanted to know if you had the opportunity of looking at the section dealing with mobility rights. Have you had the opportunity to look at Section 6(3)(b) under the heading of “limitation” with respect to mobility rights. And (b) in particular says that mobility will be subject to:
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
And I have concern with respect to the great army of programsmes, federal programmes which go to provinces and I wondered if, in your own mind, that created difficulties and indeed it would inhibit mobility in relation to social programmes such as the Canada Assistance Plan, et cetera?
Mr. Fairweather: Mr. Crombie, I would much prefer that (b) was not in the act. I think that residency for the delivery of assistance in Canada and its provinces for those who need it is mean-spirited.
Mr. Crombie: Particularly in relation to federal programmes?
Mr. Fairweather: Federal programmes are cost-shared and other formulas and my bit of an outburst, I am a little embarrassed by it except that I feel things passionately, on mobility was the movement of people.
Through the last 20 years mean-spirited regions, provinces, states in the United States. have put up residency requirements for the receipt of what is an entitlement, that I think is a poor idea.
Mr. Crombie: I appreciate your point.
Mr. Fairweather: I am sure my colleague Rita Cadieux, whose professional life has been in this area, would agree. I have not specifically asked her.
Mr. Crombie: Well, I share your views, sir. I wanted to know whether or not you regarded Section 6(3)(b) as a barrier to mobility?
Mr. Fairweather: Yes. I suspect that was part of the bargain. . .
Mr. Crombie: And ought to be changed?
Mr. Fairweather: that they tried to strike during the summer to get provincial acceptance. I do not know, that is what I suppose. I do not imagine that clause was put forward by Canada.
Mr. Crombie: Well, ought it to be changed in your view?
Mr. Fairweather: Of course it should be changed in my view.
Mr. Crombie: Thank you, sir. My second question relates to Section 1, which I understood at the outset from your remarks to be of considerable concern to you, and I have forgotten your words, but I think you regard the Charter of Rights as seriously flawed, those are the words I recall, in relation to Section 1.
I wanted to bring to your attention something which may well have already been brought to your attention, and that is a letter from a fairly well-known lawyer who takes civil liberties and civil rights cases in Toronto, Clayton Ruby. Mr. Ruby is so exercised by that portion of Section I which reads that the Charter of Rights and Freedoms will be in fact limited by:
reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government.
Mr. Ruby regards that limitation on the application of the Charter of Rights and Freedoms as so strong as to render the charter, in his words, “useless”. I wonder if you find yourself holding this same view or a similar view as Mr. Ruby?
Mr. Fairweather: Well, I am in the dilemma of being so anxious for an entrenched Bill of Rights and for this to be laid to rest as a national preoccupation of Canadians, this issue, but I would not go so far as Mr. Clayton Ruby, an ally in many causes with the Canadian Human Rights Commission.
If I may go back to the Kennedy speech, we do not want to hazard everything—I cannot imagine that when this Committee rises and reports to Parliament that this Clause 1 will be in its present form. I would be absolutely astounded. You are reasonable ladies and gentlemen here that will want to advise the Government of Canada your view of how serious this will
I am not going to write to the Globe and Mail, but of course I have access that Mr. Ruby has not. here I am.
Mr. Crombie: Well, we expect that we will have Mr. Ruby here.
Mr. Fairweather: I do not want to think that you throw the whole thing out. I would not want to think that Parliament gives its imprimatur on this bill with Section I in its present form.
Mr. Crombie: So that it is clear that Section I in its present form, if not useless, in Mr. Ruby’s phrase, is seriously flawed in your phrase?
Mr. Fairweather: It is seriously flawed, and I just cannot believe it is going to be the final enunciation of the principle.
Mr. Crombie: Would you regard that section, and I will not belabour the point, but would you regard that portion of Section I which limits the charter, would you regard that as something that directly affects Section 25?
Mr. Fairweather: It affects the whole charter. That is why we are worried.
Mr. Crombie: I understand that, sir.
Section 25, Mr. Commissioner, deals with the power of the courts. It says:
25: Any law that is inconsistent with the provisions of this Charter is, to the extent of such inconsistency, inoperative and of no force or effect.
That is the power of the court to say: Look, you are offending the Charter of Rights. My question is: Is Section 25 overcome by the limitation contained in Charter 1 in your view?
Mr. Fairweather: Of course it is.
Mr. Crombie: Thank you very much.
Mr. Fairweather: And I would be very surprised if any draftsman said it was not. I am not a very good lawyer. . .
Mr. Crombie: I am not one at all.
Mr. Fairweather: I am basically not a very good lawyer but I think Section I means what it says. It is up to you ladies and gentlemen not to let this bill into Parliament with Section I in its present form. You have an obligation to us. We are trying to serve you.
Mr. Crombie: Thank you. I have one final question and I think it is very important, and that deals with Section 15, the Non-Discriminatory Section.
My friend, Mr. Robinson indicated that in his View there was a major concern with respect to physical and mentally handicapped, and lie asked you what kind of record you had in your office in relation to offences with respect to those who have been discriminated against as a consequence of having mental and physical handicaps.
There is another change contained in your recommendations, and that deals with the question of discrimination with respect to sexual orientation and I wonder if you could advise the Committee of the experience of your Commission with
respect to reported and dealt with discriminatory acts in relation to sexual orientation in this country?
Mr. Fairweather: Messrs. Chairmen, I think the Committee will be very surprised when I say that the public is ahead of the legislation in provinces and in our nation on this issue. We wrote to many major employers that fall in our jurisdiction and they said sexual preference is not relevant to the ability to do a job. I myself would want to tell you, and my bias is coming out, I thought that many employment policies of companies would not be as liberal as they turned out to be.
Mr. Crombie: We like to use the word “fair-minded” if you do not mind.
Mr. Fairweather: Fair-minded? Whatever word you like. It has no relevance. This is an anti-discrimination rights section, it is not an espousal of a style. And we also piggybacked the survey, you will be glad to know that we piggybacked it as it saved us some money, a couple of thousand people, and the majority said that sexual preference should not be a bar to holding a job, and I have always felt, I fought as a Member of Parliament and tried to have it changed at that time. Quebec has it and the social policies of Quebec have not come tumbling down.
Mr. Crombie: Is it the only province?
Mr. Fairweather: The only province. It went through in 1977. It was added to the proscribed ground.
Mr. Crombie: Thank you very much, sir. Thank you Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Crombie. Our next speaker is Mr. Ron Irwin, followed by Mr. Fraser.
Mr. Irwin: Mr. Fairweather, I read with interest your evidence before the Joint Committee of C-60 back in September of 1978 and I will say right off the bat there is nothing in your evidence that I substantially disagree with. If there is any disagreement at all between us it would have to be on how soon and how we should implement these things that you want, and I thought we should clear that immediately.
Now, at that time you had some criticisms and the first was—well, we had many criticisms but two that I note: that under C-60, it was deficient because it neither prohibited discrimination nor provided the mechanics to the victim of discrimination. Do you see any improvement in the new bill?
Mr. Fairweather: I think, Mr. Irwin, that ifl were asked for any accomplishments in the three years since we started, that one would have to be that the agencies of the Government of Canada. the departments take the Commission seriously. I never had any doubt that Parliament would take it seriously, having come from there and knowing the commitment that Parliament unanimously made to the principle of the Human-Rights Act, but it will not be a surprise to you to know that Just because Parliament passes a bill it does not follow that the departments of government—well, it should not be surprising to people, but it has taken us a long while to get departments to understand we were serious.
The Immigration Department, for example, and other departments. We now have a modus with the Immigration Department that allows to investigate allegations of discrimination. I want to pay tribute to two Ministers: the present one who agreed with the Memorandum of Understanding that Mr. Ronald Atkey and I made. Parliament expected us to investigate but some people in EIC did not.
I am much more optimistic about the delivery systems now than I was when I was in the middle of fights with various departments of government who had not yet understood that we were serious when I appeared a couple of years ago.
Furthermore the courts have said a few things about us.
Mr. Irwin: Before I get to my second point, I think I will follow your line of questioning.
Under the Act, within three years, I understand that we will have to, the law will require that we will have to wipe out discriminatory clauses in the Indian Act, the Income Tax Act. the employment and pensions act, the existing non-discrimination act; provincially, pension acts, taxation acts, the insurance acts, perhaps the Lord’s Day acts and we will have to look at most of the human rights acts across the provinces.
Now, do you anticipate that we will have much government resistance or at least as much government resistance now as we would have had, say, in 1978, within departments?
Mr. Fairweather: Mr. Irwin, I cannot imagine government department resisting changes because Parliament in its wisdom has entrenched a Bill of Rights. I think they would want to leave town if that were so. This is surely as serious, it would be to the Government of Canada, but I am cheered because of a sentence or two that I hope to test made by the Minister of Justice for Canada, you are his Parliamentary Secretary.
He said the Government of Canada is morally bound now by this, and I expect to be reminding many colleagues of the Minister of Justice about that committment in his speech when he introduced the resolution.
So three years does not worry me because I believe Mr. Chrétien when he tells Parliament that the Government of Canada is morally bound by the principles enunciated in the Charter of Rights and will go about changing things that are offensive to this Charter of Rights.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Fairweather.
You can now hear the hell that is calling the members to the House of Commons.
I think that the committee wishes to proceed with this discussion with the honourable Mr. Fairweather on Monday night.
Is that the wish of all the members of the committee?
Some hon. Members: Agreed.
The Joint Chairman (Mr. Joyal): Agreed.
Consequently, Mr. Fairweather, if you can be here on Monday night, we will proceed with our deliberations;
Monday Night at night eight o’clock, unless there are other comments to that effect.
Order, please. The committee is not over yet.
Mr. Fraser: When we adjourn and there are members whose names are on the list to speak, could we understand that they remain in the same order.
The Joint Chairman (Mr. Joyal): Exactly. I have the list here.
Mr. Fraser: Thank you very much.
The Joint Chairman (Mr. Joyal): I always check with the spokesman of each party before opening the hearing so that I make sure that those members whose names appear on the list will be attending the following meetings so that I keep their names on the list, but they are in exactly the same order as I have received them at the meeting.
Mr. Fraser: Thank you very much.
The Joint Chairman (Mr. Joyal): Mr. Fairweather. and then Mr. Epp.
Mr. Fairweather: I am of course in the hands of the Committee but last May I gave an undertaking to the citizens of Arnprior in the Ottawa Valley to lead a month of human rights issues for the Arnprior and Ottawa Valley area. I can call them and say that your command says I cannot fulfill that obligation. Do you want me to do that?
Senator Connolly would know what a command from the Ottawa Valley. . .
Senator Connolly: It is very serious.
Mr. Fairweather: I want to do what you ask me to do but I take these commitments seriously.
The Joint Chairman (Mr. Joyal): Agreed. [Text] Mr. Epp?
Mr. Epp: Mr. Chairman, I would like to look at this matter In a general context rather than specifically with Mr. Fairweather and that side of it I hope can be understood.
I think it is somewhat difficult for the steering committee in terms of scheduling of witnesses if we do not have better coordination in terms of blocks of time, and I hope that this is no reflection on Mr. Fairweather, it is not meant to be that in any way.
However, if we are scheduling witnesses for example on Monday night, another witness, and Mr. Fairweather has made arrangements for Monday night as well, apart from
appearing before this Committee. scheduling becomes a virtual impossibility for all of us.
It would be my recommendation if that is acceptable to other members of the Committee and Mr. Fairweather as well that Monday night we proceed with Mr. Yalden, and it’ there is from the Committee a desire that Mr. Fairweather be asked to come back, that the Subcommittee can report to the Committee, and we will make these arrangements, if that is acceptable to him.
Mr. Fairweather: Agreed.
The Joint Chairman (Mr. Joyal): Before I conclude, on that suggestion of Mr. Epp, Senator Austin and Miss Campbell have already requested to speak.
Senator Austin: My comments are as have been made by Mr. Epp.
The Joint Chairman (Mr. Joyal): Merci, Sénateur Austin. Madame Campbell.
Miss Campbell: All I would have to say is that, as you said to Mr. Fraser, I would like to state very clearly that at the next session you continue with the list.
The Joint Chairman (Mr. Joyal): I always keep a very straight record of all the names of those who are on my list. I understand then that the witness on Monday night at 8 o’clock will be Mr. Yalden, the Commissioner of Official Languages.
Some hon. Members: Agreed.
THE CANADIAN HUMAN RIGHTS
THE SPECIAL JOINT COMMITTEE
ON THE CONSTITUTION OF CANADA
THE CANADIAN CHARTER OF RIGHTS AND
Purpose of this document:
1.0 to set out the general principles supported by the Canadian Human Rights Commission on the issue of the constitutional protection of non-discrimination rights.
2.0 to make specific recommendations as to the formulation of the offered protection in the Charter of Rights and Freedoms.
1.0 GENERAL PRINCIPLES
1.1 The Canadian Human Rights Commission supports the entrenchment of a Charter of Rights in the Canadian constitution, and the inclusion of non-discrimination rights in the Charter.
1.2 The Charter of Rights should offer protection at least as comprehensive as, and close to the language and spirit of, the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. These instruments were ratified by Canada in 1976 with the concurrence of the provincial governments.
1.2.1 In this connection it should be noted that Canada, with agreement of the provinces, has also ratified the Optional Protocol to the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination, Canada has also made a declaration under Article 41 of the International Covenant on Civil and Potilical Rights, which allows other countries to call attention to any failure on Canada’s part in fulfilling her obligations under that Covenant. Canada has thus increased her accountability to the world community in this regard.
1.2.2 We note in particular that under the Covenant on Civil and Political Rights, non-discrimination rights are non-derogable and cannot be made subject to limitations, even in war-time.
12.3 We note further that under both Covenants, the equal rights of men and women to the enjoyment of the enumerated rights is guaranteed.
1.3 Parliament should make its intentions clear as to the Soope of the offered protection. That is, does the offered protection apply to the substantive contents of legislation (only), or does it apply to the administration of legislation
(only), or does it apply to both the substantive contents of the law and the administration of the law? it is the position of the Canadian Human Rights Commission that the offered protection should apply to the substance and the administration of the law.
1.4 Non-discrimination rights should offer protection against legislative distinctions based on a full range of possible grounds of discrimination.
1.4.1 The Commission’s first preference would be for a general proscription of discrimination, with no grounds enumerated. thus offering the broadest possible protection.
1.4.2 Alternatively. the Charter of Rights should offer general protection with a list of examples, that is, it should allow for no discrimination on grounds such as race, sex, national or ethnic origin, colour, religion, age, marital status/situation de famille, physical or mental handicap, political belief, or sexual orientation.
1.4.3 Less desirable, but acceptable as a minimum description of the offered protection, would be a guarantee of no discrimination on the grounds of race, sex, national or ethnic origin, colour, religion, age, marital status/situation de famille, physical or mental handicap, political belief or sexual orientation.
1.4.4 A list of enumerated grounds which does not include marital status/situation de famille, physical or mental handicap, political belief and sexual orientation does not offer adequate protection.
15 It must be recognized that for the offered protection to be meaningful, it should be capable of being applied to specific forms of discrimination in the law while at the same time allowing for certain legislative distinctions to be made on the basis of the proscribed grounds in the interests of the public good. Paradoxically, therefore, in order to have strong non- discrimination rights, it is necessary to limit them.
1.5.1 Limitations on non-discrimination rights must, however, be formulated carefully and specifically. The very sweeping limitations contained in Section 1 of the present form of the Charter of Rights, for example, are unacceptable.
1.5.2 The section of the Charter of Rights which guarantees non-discrimination rights should therefore be taken out from under the application of Section 1 of the present form of the Charter, or any other general limitations clause in any revised form of the Charter. As we have noted, Article 4 of the lnternational Covenant on Civil and Political Rights provides for certain limitations on rights to be made in time of emergency but specifies that such measures may not involve discrimination.
1.5.3 Section 15 of the present form of the Charter of Rights, or any other similar provision of a revised Charter, must allow for no legislative distinctions as between various groups of persons on the basis of a proscribed ground of discrimination except those legislative distinctions reasonably and justifiably related to some bona fide social or economic amelioration of the condition of certain specified groups of persons. For example “age”—guaranteed income supplement; “marital status/situation de famille”—family
allowances; physical or mental handicap”—disability pensions.
1.5.4 No negative legislative distinction against a specified group of persons on the basis of a proscribed ground of discrimination would be allowed, (e.g. “race”—the incarceration of Japanese-Canadians; “sex”—section l2(l)(b) of the Indian Act) subject only to such reasonably justifiable limitations as can be demonstrated to be necessary for reasons of compelling state interest. Parliament should make it clear that this limitation is to be interpreted extremely narrowly and rigorously; that it is Parliament’s intention that this limitation will almost never be “reasonably justifiable” or “demonstrably necessary” on the grounds of race, sex, or colour; and that its use would be restricted to legislative distinctions such as age of eligibility to vote and other such purely practical distinctions.
1.6 Section 1 of the Charter of Rights and Freedoms as it is presently formulated offers unacceptably broad excuses for the limitation of rights and freedoms. Not only non-discrimination rights, but the entire range of guarantees in the present Charter, are rendered extremely fragile by Section 1 in its present form.
1.6.1 The present wording: “subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government” is not a formulation which is found in the growing world of jurisprudence pertaining to rights and freedoms.
1.6.2 It is the view of the Canadian Human Rights Commission that any general limitation clause in the Charter should accord with the accepted clauses in the International Bill of Rights (ie. the Universal Declaration of Human Rights, the International Convenant on Economic, Social and Cultural Rights, the International Convenant on Civil and Political Rights, and the Optional Protocol to that Convenant.)
1.6.3 The words “generally accepted” are of particular concern. It is the position of the Canadian Human Rights Commission that limitations should be “justifiable”, thus placing the burden of proof on those who wish to limit rights and/or freedoms, and that any limitation should be provided for by law.
1.6.4 The Canadian Human Rights Commission is also concerned that the words “with a parliamentary system of government” may have the effect of constraining the courts, whose role it is to uphold the Charter, by invoking the doctrine of parliamentary supremacy.
2.0 SPECIFIC RECOMMENDATIONS
2.1 With respect to the Guarantee of Rights and Freedoms, the Canadian Human Rights Commission recommends that Section 1 of the Charter of Rights and Freedoms be revised to read:
1.(1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such limits prescribed by law as are reasonably justifiable in a free and democratic society.
(2) No limitations on the legal rights or the non-discrimination rights set out in this Charter may be made under this provision.
(3) This Charter guarantees the equal right of men and women to the enjoyment of the rights and freedoms set out in it.
2.2 If Parliament should consider that sub-sections (2) and (3) of this formulation do not reflect its intentions, the Canadian Human Rights Commission would recommend that the present wording of Section 1 of the Charter be revised to read:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such limits prescribed by law as are reasonably justifiable in a free and democratic society.
2.3 With respect to non-discrimination rights, the Canadian Human Rights Commission recommends that Section 15 of the Charter of Rights and Freedoms be revised to read:
15.(1) Everyone has the right to equality under the law and to the equal protection of the law without discrimination.
(2) This section does not preclude any legislative distinction which is justifiably related to some bona fide amelioration of the condition of certain specified classes of persons.
(3) This section does not preclude any legislative distinction which is justifiably necessary for reasons of compelling state interest.
2.4 If Parliament should consider that it is necessary to enumerate proscribed grounds of discrimination in Section 15 of the Charter of Rights and Freedoms, the Canadian Human Rights Commission would recommend that Section 15 be revised to read:
15.(1) Everyone has the right to equality under the law and to the equal protection of the law without discrimination on grounds such as race, national or ethnic origin, colour, religion, age, sex, marital status/situation de famille, physical or mental handicap, political belief or sexual orientation.
(2) This section does not preclude any legislative distinction based on a proscribed ground of discrimination which is justifiably related to some bona fide amelioration of the condition of certain specified classes of persons.
(3) This section does not preclude any legislative distinction based on a proscribed ground of discrimination which is justifiably necessary for reasons of compelling state interest.
From the Canadian Human Rights Commission:
Mr. Gordon Fairweather, Chief Commissioner;
Mrs. Rita Cadieux, Deputy Chief Commissioner.
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