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 7 (18 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 7 (18 November 1980).
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HOUSE OF COMMONS
Tuesday, November 18, 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 Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss) (South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Tuesday, November 18, 1980:
Mr. Robinson (Burnaby) replaced Mr, Knowles;
Mr. Tobin replaced Mr, Lapierre;
Mr. Lapierre replaced Mr. Tobin;
Mr. Olivier replaced Mr. Bockstael;
Mr. Bockstael replaced Mr. Olivier;
Mr. Tobin replaced Mr. Lapierre.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator John J. Connolly replaced Senator Renaude Lapointe;
Senator Joan Neiman replaced Senator John J. Connolly;
Senator Florence Bird replaced Senator Jack Austin;
Senator Smith replaced Senator Roblin.
MINUTES OF PROCEEDINGS
TUESDAY, NOVEMBER I8, I98O
The Special Joint Committee on the Constitution of Canada met this day at 9:36 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Goldenberg, Hays, Lamontagne, Molgat, Petten, Roblin and Tremblay.
Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Tobin.
Other Member present: Mr. Speyer.
In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Witnesses: From Canadian Civil Liberties Association: Mr. Alan Borovoy, General Counsel; Professor Walter Tarnopolsky, President, and Mr. J. S. Midanik, Q,C., a past President.
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).
Messrs. Borovoy and Tarnopolsky made statements and, with Mr. Midanik, answered questions.
At 11:17 o’clock a.m. the sitting was suspended.
At 11:40 o’clock a.m. the sitting resumed,
At 11:43 o’clock a.m. the Committee adjourned to 3:30 o’clock p.m. this afternoon.
The Special Joint Committee on the Constitution of Canada met this day at 3:35 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Bird, Connolly, Goldenberg, Hays, Lamontagne, Molgat, Petten and Tremblay.
Representing the House of Commons: Mr. Beatty, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Olivier and Robinson (Burnaby).
Other Members present: Messrs. Allmand and Speyer.
In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers. From Parliament Centre: Mr. Dobell, Director.
Witnesses: From the Positive Action Committee: Mr. S. McCall, Co-Chairman and Mr. Alex Paterson, Co-Chairman.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1).
The question of extending the final date for written submissions or requests to appear, having been raised by Mr. Epp, it was unanimously agreed to refer it to the Sub-Committee on Agenda and Procedure.
It was agreed-That the Canadian Civil Liberties Association be invited to submit a written brief prior to appearing for a second time.
Messrs. Paterson and McCall made statements and answered questions.
At 6:02 o’clock p.m. the Committee adjourned to 8:00 o’clock p.m. this evening.
The Special Joint Committee on the Constitution of Canada met this day at 8:10 o’clock p.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Bird, Goldenberg, Hays, Lamontagne, Molgat, Neiman, Petten, Smith, Tremblay.
Representing the House of Commons: Mr. Beatty, Miss Campbell (South West Nova), Messrs. Bockstael, Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Joyal, Mackasey, McGrath, Nystrom, Robinson (Burnaby), Tobin.
Other Senator present: The Honourable Senator Nurgitz. Other Members present: Messrs. Bosley, Duclos, Friesen, Hawkes, Marceau, Tobin.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Witnesses: From the Canadian Jewish Congress: Messrs. Cohen, Cotler, Magnet, Schlesinger, 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).
Messrs. Cotler and Cohen and Magnet and Schlesinger made statements and answered questions.
At 10:00 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Tuesday, November 18, 1980
The Joint Chairman (Mr. Joyal): Order, please.
This morning, we resume our deliberation with [Text] Canadian Civil Liberties Association.
I am happy on behalf of all honourable members of this Committee to welcome you and to introduce Mr, Walter Tarnopolski, President, and Mr. Alan Borovoy, General Counsel.
I understand that you do not have any written submission as such to submit to the attention of honourable members of this Committee and that you will make an oral presentation and, of course, welcome questions. Is that so Mr. Borovoy?
Mr. Alan Borovoy (General Counsel, Canadian Civil Liberties Association): That is correct, Mr. Chairman.
The Joint Chairman (Mr. Joyal): You may go ahead.
Mr. Borovoy: Thank you very much, Mr. Chairman. I am Alan Borovoy, the General Counsel. To my immediate right is J. S. Midanik, Q.C., former President of the Canadian Civil Liberties Association, and to his immediate right the incumbent President of our association, Professor Walter Tarnopolsky.
Mr. Chairman, just a word about the Canadian Civil Liberties Association. We are a national association with a crosscountry membership of more than 5,000 members, that is more than 5,000 individual members, and some 20 to 30 group members, churches, synagogues, trade unions, which in themselves represent additionally thousands of people.
Just one word about the procedures regarding the deliberations of this Committee, and then I will pass the floor to my colleague, Professor Tarnopolsky, to begin the more substantive comments. One of the concerns that our Board of Directors requested that we should convey to you, is the extreme haste with which these procedures have been conducted. We are very concerned that Canadian history, looking back upon these proceedings, might be somewhat upset by the disquieting paradox of a mere three weeks of hearings being devoted to enshrining the most enduring values in our society and our constitution.
Consequently, we would request that this Committee do everything in its power to ensure that sufficient time is accorded to these deliberations. As you can well appreciate, we are talking about the most vital values of our society; we have to be concerned with striking the most delicate balances and using the most careful language. As I am sure your deliberations have already indicated, that is going to take, I would suggest, something in excess of the December 9 deadline which has, in our opinion, rather arbitrarily been foisted on the deliberations of this Committee.
Having said that, I now pass to Professor Tarnopolsky who will begin to address himself to the more substantive considerations before you.
Professor Walter Tarnopolsky (President, Canadian Civil Liberties Association): Mr. Chairman, I want just to empha-
size one aspect of the introduction that you just heard from Mr. Borovoy, and that is when the Canadian Civil Liberties Association appears to present a brief before any body or tribunal, the positions that are suggested by special committees on the subject are submitted to a Board for discussion by all Board members across the country, and then they come back for a vote in the Board and the Executive.
So that we are presenting the views of the Association following such process, shortened as it was.
The position of the Canadian Civil Liberties Association is that at this time we should not discuss in the abstract the question of a Bill of Rights, but rather devote ourselves to the one that is presented.
Based upon the one that is presented, we are going to draw to your attention several provisions in this charter, which, in our opinion, make it so defective that we have come to the conclusion that we would be better remaining whith the present Canadian Bill of Rights than enacting this charter unless these provisions are removed by amendment. We are going to devote ourselves to them, and I would like to approach it from this point of view.
Our position is that, essentially, one has to assess the impact of a bill of rights, a charter of rights, from the point of view of its overriding inconsistent legislative or administrative acts in the light of three matters: (1) its constitutional position; (2) the substantive provisions; the words actually chosen; and (3) the matter of remedies.
I think if you were to review the history of the Canadian Bill of Rights and what the courts have said with respect to it, these will be noted as the key points.
Let me start with the matter of the constitutional position. Repeatedly, since the enactment of the Canadian Bill of Rights in 1960, the Supreme Court of Canada has declined to apply the Canadian Bill of Rights with one notable exception, on the grounds that the Canadian Bill of Rights is a statutory provision and not the constitutional one; at most, one or two judges have referred to it as a quasi-constitutional statute.
On a number of occasions, based upon this characterization of the Canadian Bill of Rights, the courts have said they could not see how Parliament could really have intended inconsistent legislation to be ruled invalid. Therefore, from that point of view, this charter is an advance; clearly, by making it part of the Canadian constitution to that extent, it should be impossible- I say should be; one never knows for certain—for the courts to continue to refer to a quasi-constitutional document.
On the other hand, in addition to its constitutional stature as I have mentioned, the second issue is that of its content, the detail. On that point, the charter is defective.
I am going to refer to the three overall provisions which are, I think, absolutely essential for amendment, and then, Mr. Borovoy, our General Counsel, will refer to a number of specific provisions by way of illustration, and then, finally, I will deal with a third issue which I have mentioned, namely the matter of remedies and enforcement.
So I will deal with the overall provisions, Mr. Borovoy will come back with the specific ones, and then I will finish off which reference to the remedies clause.
Well, the clause that, in our opinion, is most important to change, perhaps drop altogether if one cannot change it sufficiently, is Section 1.
Section 1 permits Parliament to take away everything that Parliament gives by the rest of the charter. Let me deal with it one by one. Limitations clauses have come to be inserted in international instruments and in Commonwealth bills of right by United Kingdom lawyers since 1950 with the signing of the European Convention on Human Rights, However, none of the limitations clauses, in the international arena, nor, of course in Europe, nor in the Commonwealth, has a limitation clause as wide as this one; and I will deal with it in turn.
Perhaps—and least important, but nevertheless an issue which detracts from the effectiveness of Section 1 are the very last few words, that we are talking about a democratic society with a parliamentary system of government.
Perhaps people wanted to draw a distinction between the presidential republican system and the parliamentary system, and in that way it seemed innocuous.
However, every first year law student could tell you that the fundamental principle of parliamentary government is parliamentary supremacy. Now, I personally think that an entrenched bill of rights is compatible with parliamentary supremacy, and there are examples in the Commonwealth of this being so. Nevertheless, one cannot be unaware of the fact that in 1960 there was considerable debate over the fact that—which continues to this day—parliamentary supremacy means you cannot entrench a bill of rights, and that the last word of Parliament has to override any previous word of Parliament.
Now, I would hope that the transformation of a bill of rights from an ordinary statutory bill of rights into a constitutional one might overcome that; nevertheless, it does raise a possibility for a judge, who is not anxious to change the relationship between the legislatures and the courts, to seize upon that point.
Far more important than that, however, are the terms generally accepted.
I think the most obvious answer to that is it would be very difficult to argue that whatever Parliament enacts is not generally acceptable in that society. I do not know how one could argue that members of this House do not represent what is generally accepted in society.
I, therefore, have no doubt that the treatment of the Japanese Canadians in World War II, that the results concerning Mrs. Laval in 1973, that the Jehovah’s Witnesses in Quebec in the 1940s and 1950s, would all be measures which would be generally accepted in our society. I have no doubt also that this is clause which has to be removed or there really is no limit, and again, it finds no counterpart that I know of in any Commonwealth or international bills.
Let me suggest that there is another reason why—and probably as important as any of the others—this provision in its form overall makes the charter defective.
The limitations provisions that I have mentioned in the international or domestic scene, make reference to the fundamental freedoms alone; in other words, Section 2 of the proposed charter. They do not apply to the legal civil liberties, the legal rights you have starting in Section 7. Those under any of the international instruments can only be encroached upon in time of emergencies officially proclaimed, and not in peacetime, in normal times.
Now this clause, of course, applies to all parts of the charter in normal times as well as in emergency periods.
What I think is equally important is that even in times of emergency, again the international and domestic instruments I have referred to withhold certain rights from derogation even in those times; in other words, there are nonderogable rights; very quickly, under the International Covenant on Civil and Political Rights, which Canada has ratified and which binds all I I governments in Canada, one cannot contravene the right not to be subjected to cruel or unusual treatment or punishment; there cannot be discrimination on grounds, for example, of race alone, for that reason; there cannot be restriction upon one’s right to freedom of conscience and religion; perhaps one’s right to manifest religion in common with others, but not the right to freedom of conscience and religion; there is also no right to derogate from the prohibition against retroactive treatment or punishment or against double jeopardy and against rights to an interpreter.
So there are really three categories of rights: those which, by international standards, we have submitted ourselves; those which are nonderogable even in times of emergency or war; and those, like the legal rights which may be encroached upon, but only in emergencies if officially proclaimed; and then the fundamental freedoms which are subject to certain rights.
Finally, what are those limitation clauses? In the International Covenant, the reference is to such laws as are subject to such restrictions as are prescribed by law and are necessary for the purposes of a free and democratic (and, in our case, plural and democratic) society.
Now, it seems to me that the importance of that is that the onus has to be upon the one who argues that there are restrictions, and that has to be put in terms of being either necessary or demonstrably justifiable or demonstrably necessary; but the onus has clearly to be upon the one who argues in favour of the restriction and, which is important, it has to be prescribed by law, because that-and this is as far as I will go into the question of the pluses and minuses of the Bill of Rights; because the most important aspect of the Canadian Bill of Rights is not so much in the invalidation of parliamentary legislation as it is in the control of administrative acts, police acts, and with respect to that the limitations that are provided in international instruments require that they be provided specifically by law.
It will not continue with that section because time is limited, but let me turn to the other two overriding provisions which I
think have to be considered and changed. The first of these is Section 25. Section 25 I think is absolutely necessary.
In fact, our recommendation would be that it be given much more prominence than it is given and moved perhaps even to the fïrst section. It, along with the constitutional position of the charter, would seem to make it possible to convince reluctant courts that the charter is to be overriding.
However, the major defect here, or the major mission here is that it applies only to legislation, and as I have suggested, most of the Bill of Rights, of one looks at the American experience, comes in its application to administrative and police acts, not to legislation. In other words, if we take the case which I think illustrates the defect here and, later on in the remedies clause I will come back to, the Hogan case. In Hogan, you will recall, Hogan was driving with his girlfriend in the car, stopped by the police on suspicion of drinking, asked to come to the police station, he asked his girlfriend to phone a lawyer, she did, the lawyer arrived in the police station before Hogan took the breathalizer. He was then asked to take the breathalizer, He said “No, I want to speak to my lawyer.” At that point, the police said, “No, if you do not take the breathalizer we will charge you with failing refusing without reasonable excuse to take the breathalizer.”
Hogan foolishly, at that point, and how many people in Canada would not have done the same, took the breathalizer. Then the argument was whether or not it would be possible to exclude that evidence, and I will come back to that under the remedies clause.
But for our purposes here, what this means is, there is nothing in that case that would be changed by Section 25 because it was not the Criminal Code that was held invalid, there was nothing to hold invalid. It was an administrative act that had to be in some way either controlled or punished in the hope of deterring similar acts in the future.
So, Section 25 docs not deal with that, and that is only one illustration. Therefore, it seems to me and quite clear that Section 25, being a very important section, which should probably substitute for the present Section 1, needs to take account not just of laws, but of administrative acts as well.
Well, I am going to return to Section 26 and the remedies clause, but I think it would be useful at this stage if we were to illustrate some of the problems that we see with specific clauses, again, on the second of my three points concerning effectiveness of the Bill of Rights, namely, what is the language chosen, what is the content.
I would return, Mr. Chairman, with your permission to Mr. Borovoy.
The Joint Chairman (Mr. Joyal): Mr. Borovoy?
Mr. Borovoy: Mr. Chairman, we will pass on to the legal rights under Section 8. Everyone has the right not to be subjected to search or seizure, except on grounds and in accordance with procedures established by law.
It would appear that this section may be a verbal illusion in the sense that it may pretend to give us something, but in fact, gives us nothing more than we already have.
At the moment, there can be no searches and seizures unless they are done in accordance with procedures established by law.
We would think that the real problem is, what do some of our laws themselves provide in the way of the power to search and seize.
Let me cite to you a case that received considerable controversy a few years ago, the famous or infamous Fort Erie search and strip drug raid.
Just to refresh your memory, the police conducted a drug raid in a small Fort Erie hotel. By the time they were finished their business, they had searched more than 100 patrons they had found in the lounge. In the case of the women, some more than 30 women they found, they had them herded into washrooms, stripped and subjected to vaginal and rectal examinations.
In the result, the police found only a few grains of marijuana and they were found not in any of the body orifices but rather on the floor of the lounge.
Indeed, what also emerged is that at no time did the police believe that everyone they searched was in unlawful possession of an illicit drug. But apparently under the Narcotic Control Act, there is a power with respect to places other than dwelling houses without any kind of a warrant, even a Writ of Assistance, even that is not required, forcibly to enter, search the premises and, according to the views of the Royal Commissioner who ultimately sat in that matter, searched all of the persons found on the premises whether or not each of the persons searched is himself or herself the object of reasonable suspicion.
If Section 8 existed at the time of the Fort Erie search, it would appear that we would have no basis to challenge this provision under the Narcotic Control Act.
We would suggest, therefore, that it be amended so as to create an opportunity to challenge the reasonableness of the law itself. The suggestion might be something like, everyone has the right not to be subjected to unreasonable search or seizure. That may be one way of accomplishing this goal.
The same considerations would apply with respect to Section 9. That does, in the case of detention and imprisonment, what Section 8 does with respect to search and seizure. Also with Section 11(d), the provision dealing with bail is the same thing. It would seem to us that we ought to be talking about in the case of arrest and detention something like arbitrary arrest and detention. If we are talking about reasonable bail, we might also talk about reasonable grounds and in accordance with fair procedures.
So that not only would the administrative practice be subject to challenge, but also in the event of an overly arbitrary law or a law which creates arbitrary powers, the law itself.
I then turn to Section l0 and in order to give more practical significance to the various rights that accused people or arrested people would have, we would suggest that this be augmented, that people under arrest be informed of the rights that they are entitled to exercise as soon as practicable after the arrest and that a very key component of this is that they, as you can appreciate, many of the problems that arise with arrested people arise during the course of custodial interrogations. The person is under arrest, he is nervous, frightened, bewildered and he is then subjected to an interrogation.
One of the problems is that in those circumstances, these people may very well make themselves look guilty when they are not or guiltier than they are. The idea of having the right to retain and instruct counsel without delay is of course our answer to that, but in order to give that more practical significance, the suggestion we would make is that in the absence of some imminent peril to life or limb, that people in these circumstances not be subjected to custodial interrogation until they have been advised of their right to counsel and having been so advised, either exercise it or waive their right to exercise it.
I might add in this connection, that on the basis of the research that has been done into this, there is no reason for us to anticipate that law enforcement would suffer unduly from granting these additional protections to accused people.
As you know, some such protections were introduced into American Law by virtue of the Moranda case in the U.S. Supreme Court. Some surveys conducted shortly thereafter indicated that although the rate of confessions dropped after the Moranda rule went into effect, the rate of convictions and crime clearances, which are another way of saying crime solutions, did not drop.
So, in other words, it appeared that custodial confessions were not the indispensable element in law enforcement that many people had until then thought.
If these changes were made in Sections 8,9, 10 and 11, it may be that Section 7 may no longer be as necessary as it may be viewed now, if we could provide tougher safeguards with respect to search, seizure, arrest, detention, the treatment of people in custody and add to that habeus corpus a right against cruel and unusual punishment, it may be that Section 7 may no longer perform the function that it is viewed as being necessary at the moment.
Then go from the legal rights to the very difficult one of Section 15. The problem with this, of course, one is always concerned about is how well a section of this kind ultimately be construed by the courts. There is a risk and one never knows exactly how these things are going to be interpreted, but there is a risk that on the one hand it may be too narrow and on the other hand it may be too broad. It may be too narrow because if we state the gronds of unacceptable discrimination in the charter, then we may implicitly be saying that any other ground of unreasonable distinction or discrimination thereby becomes constitutionally acceptable.
In fact that, I suppose, has been dignified with the term: the expressio unius canon of statutory construction. I always like to show off a little bit, Thank you.
So in that respect the clause may be too narrow, In another respect it may be too broad.
Is there a risk that if one says, for example, no race discrimination, there can be no discrimination because of race, might that imperil Indian Reserves? To what extent might that be discrimination because of race?
To what extent might old age pensions or the Juvenile Delinquents Act be arguably considered discrimination on the basis of age? I am not suggesting necessarily that the courts would give that interpretation, I am only suggesting that the words may be such as to create some problems with respect to it, and what one always worries about is that if the courts, as many of us would think likely, seek to sustain the Indian Reserve system, old age pensions and the like, in doing so they may develop doctrines that might create mischievous precedents for some other situations where we would not want it to apply.
So the suggestion that we would make to you is that perhaps, if I do not say the best we can do, but the least badly we could do with this section might be to say something like: everyone has the right to equality before the law and equal protection without unreasonable distinction or discrimination. Incidentally, I add the word “distinction” in order to deal with some of the court judgments we have already faced, as for example the Alberta case where a 16 year old boy was convicted as an adult of contributing to juvenile delinquency for having sexual intercourse with a 16 year old girl, because they said in the Province of Alberta girls at the age of 16 and 17 were juveniles but boys at that age were adults and the court held; well, this was not discrimination because by discrimination they meant some kind of an adverse impact; this was conferring a benefit on the girls and this was not discriminating against boys.
In order to deal with that we would suggest that perhaps the words “without distinction or discrimination” might be added, and then we would say this, that we then start by saying without unreasonable distinction or discrimination and then say something like: without restricting the generality of the foregoing, the following categories will be considered presumptively unreasonable, and here we would choose those grounds of discrimination that are almost always unacceptable, such as race, religion, sex, national origin, ethnicity. In that way what the clause might do is try somewhat better to harmonize the interests of designating some of the most vital values for protection in our constitution and avoiding rigid absolutism on the other hand and providing some measure of effective protection.
When I said “race” I mean race, religion, colour, national origin, ethnicity, for those purposes. In that way, we might somewhat less badly, if not more perfectly, attempt to harmonize the various objectives that we have with respect to Section 15.
Having said this with respect to the specific matters, I pass it back to Professor Tarnopolsky for the more general concern
The Joint Chairman (Mr. Joyal): Mr. Tarnopolsky.
Professor Tarnopolsky: Thank you, Mr. Chairman. I will be very brief with reference to proposed Section 26.
Ordinarily one would expect that when a bill of rights sets out certain rights and freedoms, that a remedy would be presumed. In other words, our courts would not be moved to assert there is a right unless there is a remedy, but if I could take you back briefly to the Supreme Court decision in the Hogan case, you will know that the majority of our Supreme Court has not followed that kind of logical conclusion. In the Hogan case, although all members of the Supreme Court did say that the denial of counsel to Hogan was a contravention of the right to counsel in the Canadian Bill of Rights, the majority went on to say that there was no remedy written out in the Bill of Rights and they did not have to devise one, and certainly they saw no reason to adopt the American exclusionary rule because, they said, the system in the United States was different.
Now, they said that despite the fact, as Chief Justice Laskin pointed out in dissent the American exclusionary rule was developed by trial and error in the United States and did not necessarily follow from the American Constitution, it was just that the courts had concluded that no other form of sanction worked from the point of view of protection in the Bill of Rights.
Now, finally, of course, what the Supreme Court then said was that they could not find in the Canadian Bill of Rights a reason to override the long standing rule of evidence, that evidence if obtained even illegally is admissible if relevant. Now, that, Mr, Chairman, we suggest is exactly what Section 26 enshrines. Section 26 enshrines the rule that evidence, even if illegally obtained, is admissible if relevant and I cannot imagine a Bill of Rights that we would want to hold up proudly in the world having that kind of a provision specifically protected.
So our submission is that Section 26 should be totally deleted and instead one should have a provision similar to the proposed Section 19 in the July version of the Charter of Rights and Freedoms, the July version which the federal government submitted for provincial discussion, and perhaps one should just say generally that in every way one can think of the July version was much superior to the version that was finally agreed upon in September and which the federal government decided to choose for the proposition here.
In every way we would urge you to go back to the July version over the September version, but in this provision, very simply Section 19 stated that anyone whose rights or freedoms as declared by this charter have been infringed or denied to his or her detriment has the right to apply to a court of competent jurisdiction to obtain such relief or remedy as the court deems appropriate and just in the circumstances, which means exclusion in some cases but not necessarily exclusion in every case if other forms of relief or remedy are available.
Now, with that we conclude, Mr. Chairman, and again in conclusion may I say that although there are provisions here which we think could easily be changed, until they are we have
to come to the conclusion that with these provisions, particularly Sections I and 26, and to a lesser extent Section 25, in the form that they are written, would actually set us back from whatever small advances we have made with the present Canadian Bill of Rights and that certainly is not very much.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Merci, Mr. Tarnopolsky. I would like to recognize now the Honourable David Crombie followed by Mr. Svend Robinson. Mr. Crombie.
Mr. Crombie: Thank you, Mr. Chairman. It is nice to see you gentlemen here with us this morning. I am not sure how you wish me to address these questions, to all of you or one of you, so let me allow you to make the choice.
Professor C. R. Brown at Carleton University the other day indicated in his opinion the current charter of rights before this Committee would not only limit the rights of Canadians less than what they have now, but would indeed extend the power of government over individuals beyond which government now has.
Professor Brown is a constitutional historian at Carleton and I do not think his field is civil liberties so I want to know your reaction to Professor Brown’s comment?
Professor Tarnopolsky: Well, Mr. Chairman, in that absence of a Bill of Rights entrenched in the constitution we have a situation of parliamentary supremacy, so I do not, how Professor Brown could argue that anything done, even as weak as this one is and we certainly think that this one needs strengthening, I do not know how one could argue that any kind of a writing of rights into the constitution would be worse than a totally unfettered Parliament which is supreme in the present situation.
Mr. Crombie: If I could, Mr. Chairman, I would not want to mis-state Professor Brown. He was not arguing against an entrenchment as a matter of principle or philosophy, he was concerned specifically with sections in the proposed resolution which in his view would diminish existing rights now held by Canadians. I would think he probably had in mind such sections as Section 26, so I am trying to understand from your point of view as civil libertarians whether or not you would agree with Professor Brown that it diminishes existing legal rights that Canadians now hold.
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky.
Professor Tarnopolsky: Well, very briefly, I think it leaves the way open. It leaves the way open in this kind of way, that the Canadian Bill of Rights has no limitations clause so to the extent that the proposed Section I seems to provide very clearly for a very broad limitations clause, to that extent I think there would be less of an opportunity to argue the limitations than under the present Bill of Rights. To that extent I think that Section I could be more dangerous from a civil libertarian point of view.
The other thing is, despite the fact, as I pointed out in the Hogan case, a majority held that the Canadian Bill of Rights would not permit them to over-rule the legally admissable rule.
Nevertheless, that is just a majority decision, it could be changed.
What we now have is a provision that nothing in the Bill of Rights will change that rule, so to that extent you have enshrinement in the constitution of a rule that at the moment is only a result of judicial interpretation.
Mr. Crombie: Thank you, Mr. Chairman. In the second area of questioning, if I could, some people have suggested that the provisions in the resolution now before us would place certain affirmative action programs at least in a state of uncertainty if not place them in a position whereby they may be under-challenged, and I am thinking particularly of affirmative action programs with respect to women, young Canadians and native peoples. I wonder if you had any opportunity to review those sections which might pertain to affirmative action programs and if you had any comment at all?
The Joint Chairman (Mr. Joyal): Mr. Borovoy.
Mr. Borovoy: Section 15(2) would seem to protect programs that are designed to ameliorate disadvantages and in fact it would appear to go further than the kind of affirmative action programs you are talking about. So in its terms it would appear that it would protect those programs and would not leave them subject to challenge. Though I should add, Mr. Crombie, that my legal advice is often worth what you are paying for it.
Mr. Crombie: I have paid for it before and I found it excellent, actually.
Mr. Chairman, a final question. To give us some understanding of the possibly specific impact of certain sections of the proposal now before us, can you look at Section 7 and Section 12. Section 7 speaks concerning the right to life. If we could turn to Section 7, it says:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principle of fundamental justice.
What impact would that section have on the current debate with respect to abortion and the issue of abortion in this. country. I have a second question, I would like you to answer both of them, if you do not mind.
If you could also turn to Section 12, that deals with the matter of cruel and unusual punishment:
12. everyone has the right not to be subjected to any cruel and unusual treatment or punishment,
What impact would that section in your view have on the debate concerning capital punishment in this country? So Section 7 and Section l2 if you would not mind.
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky.
Professor Tarnopolsky: Well, certainly the Supreme Court of Canada, in the Miller and Cockriell case, held that under the present Canadian Bill of Rights the death penalty was not cruel and unusual treatment or punishment, and in that case the discussion to a large extent dealt with the substantive issue, although it is true that in a majority judgment Mr, Justice
Ritchie did make a great deal of the fact that it is not really a constitutional bill of rights so we do not know whether their view would be transformed.
However, I think one of the things that one has to say with respect to this clause is that it is a fairly commonly used clause. It is in the International Covenant on Civil and Political Rights in slightly differcnt form. It goes back, of course, to the English Bill of Rights and the Americans picked it up. So there is a great deal of jurisprudence on it and certainly in the United States, to our disappointment, may I say-the Canadian Civil Liberties Association is opposed to the death penalty and I think we should make that clear-nevertheless, the jurisprudence does not indicate that all death penalties in all cases are in contravention of this clause. We would certainly argue that that is so but thus far there has not been a majority on either the American or Canadian Supreme Court who have agreed with that position as far as we are concerned.
The Joint Chairman (Mr. Joyal): One more question.
Mr. Crombie: Well, I would like the answer on Section 7, but I am not sure I clearly understood that. Are you saying that the jurisprudence so far would indicate that Section 12, the cruel and unusual punishment, would argue against the adoption of the death penalty?
Professor Tarnopolsky: Well, Mr. Chairman, this would be our position in the Canadian Civil Liberties Association but one has to admit that in the United States the American Supreme Court has not held all forms of the death penalty in all circumstances to be contravention of the cruel and unusual treatment or punishment clause, and our court has come to the same conclusion although that precedent is somewhat clouded by the fact that Mr. Justice Ritchie based a great proportion of his judgment on the constitutional position and the intention of the bill of rights rather than on the substantive issue.
Mr. Crombie: Thank you. Can we have your reply on Section 7?
Mr. Borovoy: Yes, I was going to deal with that, I get the hard ones.
I think that one of the problems may be, part of the answer to your question might depend upon how one interprets the word “everyone”, within the meaning of Section 7.
However, I must tell you this was one of the considerations that I had in mind when I suggested earlier that if the changes were made in Sections 8,9, 10 and 11 that we were recommending, it may be that the kind of protections you are looking for in Section 7 could be given without running that risk that Section 7 might well create.
The answer in short is that it might create the risk that you are talking about of having this matter of abortion dealt with through constitutional provision. It might create it, although one cannot say this with any certainty, and if you wanted to have the protections which appear to be granted by Section 7 without running that risk, perhaps you might do it by accommodating our requests with respect to those other sections and maybe at that point you would not need Section 7.
Mr. Crombie: Thank you.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Crombie. I would like to recognize now Mr. Robinson followed by Mr. Irwin. Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman. And I, too, would like to thank you very much for preparing such an excellent presentation in such a short time and I wonder, as a procedural matter, whether you have any intention of following up this presentation with a written brief which will perhaps make reference to some of the sections that you dealt with today as well as any others that perhaps you have not even had the time to consider.
Mr. Borovoy: My colleague, Mr. Midanik, was with this usual wisdom reminding me that you would have a written record of whatever oral wisdom has been exchanged at this hearing.
Mr. Robinson: Well, certainly I appreciate the fact of the written record but what I am wondering is, as I say, in view of the very severe time limitations on preparation, whether you would give consideration to perhaps preparing a full written brief?
Mr. Borovoy: Yes.
Mr. Robinson: Thank you. A question on your interpretation of Section 1, and certainly I share the concern that you have expressed with respect to that section, and I think Professor Tarnopolsky, as a member of the United Nations Human Rights Committee, just recently appointed to another four-year term, will confirm that the chances of Canada being hauled before this Committee if this particular section is enacted in its present wording are not remote by any means. You referred to the question of the treatment of Japanese Canadians during and after World War II-and a number of other examples. Would you confirm that the proclamation of the War Measures Act in 1970, an example that you did not use, the proclaimation of that act in 1970 and the regulations pursuant to that act would be entirely possible and indeed probably construed as generally acceptable under the terms of Section 1 of this charter?
Professor Tarnopolsky: Yes.
Mr. Robinson: I would like also to turn to a question which has not been raised by your submission today with respect to a matter of procedure, namely, the effect of the referendum provisions of the proposed Charter.
As you may be aware, the proposed Charter would permit a referendum—following what has been referred to as a deadlock— to take place; there would be a requirement of a regional majority in the four regions of Canada; but the concern which I have expressed in this Committee on previous occasions is that I would submit that the provision to permit a referendum with only a simple majority of Canadians to take away rights which are entrenched in that proposed Charter of Rights should not be contained in a Charter of Rights if it is to have any substance whatsoever.
I wonder if you have addressed this, in a view of your concern for the protection of minorities from the transient will of the majority as expressed by referendum, and whether you
have any comments on that procedural way of changing the proposed Charter of Rights?
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky.
Professor Tarnopolsky: Thank you, Mr. Chairman. We did not consider it in our Board. Let me just say very briefly, without going into that, that when you have a Section I which, in our opinion as we have expressed it, puts no limitation, there is no point in going through the slightly more elaborate procedure of a referendum. All that Parliament or any legislature would have to do is to proceed under Section 1 and be fairly certain that it would not be challenged in any case.
But I have to say that we did not consider that specific point in our Board, but restricted ourselves to the provisions in the proposed Charter.
Mr. Robinson: You may wish to address that point in your written brief, Professor Tarnopolsky.
I would like to return to Section 1. There has been some suggestion that the inclusion of the words, at least in the English version, although they are omitted in the French version, the inclusion of the words “reasonable limits”, in some way obviates the concern which is being expressed with respect to the sweeping nature of Section 1. I wonder if you would care to comment on whether that has any substantive effect on the fettering of some of the opportunities for abuse of the charter?
The Joint Chairman (Mr. Joyal): Mr. Tarnopolsky.
Professor Tarnopolsky: I think when you have words of some limitation-and I think there could be some argument that, in the absence of words such as “generally accepted,” that a phrase referring to “reasonable limits”, because this is a phrase similar to those used in the Commonwealth Constitutions that the United Kingdom lawyers have given, that that provides a kind of objective assessment and puts a certain onus on one arguing in favour of limitation to prove the necessity.
However, where you join an objective provision such as that with a wide-open provision such as the other, I would suggest that, instead, it detracts from whatever force the objective provision has.
Mr. Robinson: Thank you.
I would like now to turn to Section 7 which has been referred to by Alan Borovoy, and touch upon a point not specifically raised, namely the reference in there, not to the principles of due process which have been established to a certain extent in Canadian jurisprudence, but to the principles of fundamental justice.
Would you care to comment upon the effects of the difference between the words. “due process” and “fundamental justice” and the extent to which these words “fundamental justice” have had any consideration on Canadian jurisprudence particularly in the area of criminal law?
The Joint Chairman (Mr. Joyal): Mr. Tarnopolsky?
Professor Tarnopolsky: Thank you, Mr. Chairman.
We have given some consideration to Section 7, and the real difficulty that we see is that the term “principles of fundamental justice” is used interchangeably with the term “principles of natural justice”—a well-known administrative law description referring to fair hearing, and in our Anglo-Canadian jurisprudence has not referred so much to prehearing or to pretrial procedure, which is one of the matters of concern in any provision with respect to life, liberty and security particularly, and which is dealt with particularly in the following Section 8. Now, it is for this reason that when we considered this, the alternative would have been the “due process” clause.
In the last decade—in fact, in the last two decades-since the enactment of the Canadian Bill or Rights, there is no doubt that the due process clause has come in academic circles to mean more and more the over-all penumbra of fairness in the administration of justice However, our courts have not yet adopted that interpretation, and there remains a fear in many circles that any reference to a due process clause, even without reference to property in this clause, could reintroduce the substantive “due process” interpretation in the United States.
Now, one could argue that that is not a very likely reintroduction. Nevertheless, there is a certain fear that a reference to a due process clause might bring that kind of reintroduction. This is why, after consideration of the other articles, we came to the conclusion that a tightening up of the other legal rights would make a general clause not necessary, considering all the difficulties with the rewriting; and this is the reason why we came up with the recommendations we made today.
Mr. Robinson: Perhaps you could pursue that question of the differences between the due process concept and fundamental justice in your brief. It is certainly an important area which, I would imagine, this Committee would want to pursue. You referred, Professor Tarnopolsky, to the English Bill of Rights in passing. One of the rights which was certainly contained in that Bill of Rights, and also contained in the American Bill of Rights, and which is not referred to at all in this section, is the right to trial by jury, at least in the case of serious offences.
Did the Civil Liberties Association give any consideration to the omission of this, what I consider to be a fundamental cornerstone of the criminal justice system, and do you have any view on whether or not this trial by jury right, in the case at least of serious offences, should be included in a Charter of Rights?
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky.
Professor Tarnopolsky: Thank you, Mr. Chairman. No, we did not consider that provision. I have no views on that at CCLA that we can express on it.
Mr. Robinson: Just a couple of more brief questions, Mr. Chairman. One other area which I wonder whether you have considered in the brief time that you have had to consider this matter and that is the question of the right on the part of the accused to remain silent. Did you consider the fact that this is
not contained anywhere in the proposed Charter of Rights and, particularly, I assume that you noted that Section 13 refers to witnesses but does not in any way entrench the right to remain silent of the accused. Has that point been considered. Perhaps Mr. Borovoy might answer that.
The Joint Chairman (Mr. Joyal): Mr. Borovoy?
Mr. Borovoy: Not as such, Mr. Robinson. Perhaps it may be not the kind of careful reading that we should have given the document. With more time, of course, we would, but if that is so, I would like to take a second look at the document and consider some way of giving additional protection to that. I was rather assuming that it had, but if a more careful reading suggests that it does not, then any further representations we have to make to you would certainly include that.
Mr. Robinson: Thank you, Mr. Borovoy.
The Joint Chairman (Mr. Joyal): Mr. Fraser, a point of order.
Mr. Fraser: A point of order on that very point-the witness to look at Section 13.
Mr. Robinson: Well, Mr, Chairman, with respect to my friend, Mr. Fraser, I have referred the witness to Section 13. Section 13 does not refer in any way to the right of the accused to remain silent. The B.C. Civil Liberties Association will be making this point in their brief, but I just would say this has been referred to.
My final question if I may, Mr. Chairman, refers to Section 15. I appreciate very much the remarks you have made with respect to the inadequacies of that section as it is now drafted and certainly we intend to propose a number of amendments very much in line with the kinds of suggestions you have made.
I do wonder though whether you have considered two points: the first is the wording “equality before the law”, followed by equal protection of the law and the desirability of changing that to a different formulation, perhaps equality in the law or equality in and under the law so it is very clear that we are not just talking about the administration of the law but we are talking about the substance of the law.
Secondly, Mr. Borovoy, you referred to Section 15(2). I hope that you in your written brief will give very careful consideration to the proposed wording of this in view of the fact that it has been suggested by a number of persons, including the Advisory Council on the Status of Women that in this present wording this is simply not adequate to protect affirmative action plans, it is ambiguous in the term disadvantaged and I wonder if you might at least flag that as something you could look at in a written brief and also if you could comment on the question of equality before the law.
The Joint Chairman (Mr. Joyal): Mr. Borovoy, Professor Tarnopolsky.
Professor Tarnopolsky: Thank you, Mr. Chairman. One just does not know whether the change of the word equality before the law to something such as equality under the law will make a difference. There are certain people who so feel and I must say that in another incarnation as a member of the Canadian Human Rights Commission, we have suggested a different wording and, as you may remember when the Chief Commis-
sioner was here, he pooled all commissioners and I am one of them and I agreed with the formulation of the Canadian Human Rights Commission.
One is guessing as to what is going to be most effective. I think one can say this, that when particularly Mr. Justice Ritchie in the Laval case introduced the conception that the term “equality before the law” really means no more than dicey, suggested for it, which is, if everyone is equal before the courts of the land.
At that point, he also suggested that he was rejecting the American egalitarian conception of the clause.
Now, what is being proposed here is with the addition of the words “equal before protection”, one is specifically indicating the incorporation of American jurisprudence. Whether that is going to be sufficient, one does not know.
However, it seems that when there is a combination of the nondiscrimination clause with the equality and equal protection clause, that the egalitarian concept is supposed to infuse the equality or equal protection clause.
Certainly, this is the approach taken in Article 26 of the International Covenant and Civil and Political Rights in combining the prohibited grounds.
So, from that point of view, the suggestion where we have placed our emphasis is more on the decision, the hard decision that has to be made either to extend the grounds or not to mention any for the fear that those not mentioned might be excluded.
On the matter of the affirmative action or, in Canada as they are called special programmes provisions, Section 15(2), I think that the point made by the Canadian Human Rights Commission is certainly one we do not disagree with, namely, that we do not want to have to refer to it so broadly that there is no possibility of the review in the sense of the programme being designed specifically for a bona fide amelioration of a person or group of persons; in other words, taking past history, there seems to be no doubt that it is possible with the clause quite as broadly as it is to include affirmative action programmes that we in the Canadian Human Rights Commission would not have considered to be such.
So that on that particular point, I do not think that our position on the affirmative action programme is really any different than that submitted to you by the Canadian Human Rights Commission.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Tarnopolsky.
I believe that Mr. Crombie was under the impression that he could ask questions during 10 minutes only. We are still on the first round and I would like to remind him that he still has a few minutes.
If you want to continue, pursue, Mr. Crombie, for another five minutes. You are on for five minutes. Mr. Crombie?
Mr. Crombie: Thank you, Mr. Chairman. If I could return to your opening remarks, gentlemen, There was a concern
about the resolution as it stands, such a concern that you indicated, I think it was Professor Tarnopolsky, suggested that the resolution was so defective that we would be better off to keep the one we have. I think that is almost a quote.
In that concern, you registered specific remarks with respect to Section 26 dealing with evidence, Section 25 dealing with administrative tribunals, Section 8 dealing with search and seizure, another one with equal rights. But it seems to me that the centrepiece of the legislation that is now before us is Section 1.
In that particular section, you seem to be recommending to the Committee that unless we change Section 1, then in a sense the game was not worth the candle, that the rights that are promised are not delivered.
I want to make sure that that is clear to the Committee. Are you suggesting that unless we change Section l, then the resolution with respect to civil rights that is before us is either useless or dangerous or both?
The Joint Chairman (Mr. Joyal): Mr. Midanik?
Mr. J. S. Midanik (Q.C., Canadian Civil Liberties Association): Yes, that is our position. Not only that you change Section l, but that the rest of the charter be changed along the lines we have indicated because we feel that the rest of the charter itself is also defective in many respects. But the major problem deals with Section I and if any form of Section 1 is kept so that there be some limitation at all, our position is that it should apply only to Section 2 and not to the rest of the charter.
In other words, that the specific rights in the Charter not be limited at all by any Section 1, but if there be any specific limitations, they apply to Section 2 and any such limitations might well be delineated more clearly, as contained in a number of the international covenants.
So, what we are saying again is that if what you are going to give us is what we have now, what is before us, our position is thanks, but no thanks, we would rather take our chances with what we have.
Mr. Crombie: Thank you. I have one final question if I could, Mr. Chairman. Thank you, Mr. Midanik.
I noted also in your opening remarks and a copy I phrased down because I think it was rather well put where you indicated you had some concern with the extreme haste by which this resolution is being put through and indicated, therefore, appropriate-I think it was Mr. Borovoy’s phrase for an appropriate constitution making, we should be talking about vital values, careful language and delicate balances; rather adroitly put I thought.
I wondered in your own consideration of vital values, careful language and delicate balances, whether or not you had given consideration to a charter of rights that required for change that it be done by extraordinary means, but not necessarily so extraordinary that it overcame parliamentary sovereignty. That is to say that there are some who feel that the shift of
power from Parliament to the courts over time can best be accommodated within the parliamentary system by having it changed by means beyond ordinary legislation, but still leaving final power to the Parliament. Have you given consideration to that as an opportunity?
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky?
Professor Tarnopolsky: Thank you, Mr. Chairman. I am sorry, the reason for our smiles is that, as we indicated earlier, we are presenting the views of a Board and I can say I think quite readily that there are some of us who would have gone much further, there are some of us who would have only gone as far as you wanted to go, there are some of us who would not have gone as far as we have gone.
Our position is very much like that of a member of Parliament after caucus, not within.
The Joint Chairman (Mr. Joyal): Yes, thank you, Professor Tarnopolsky. Thank you, Mr. Crombie.
Mr. Crombie Thank you.
The Joint Chairman (Mr. Joyal): Monsieur Irwin, s’il vous plaît.
Mr. Irwin: Mr. Borovoy, I do not subscribe the elevation of a lawyer to a bench makes them any smarter, nor the view that election to the House of Commons means that you have to check your brains at the Peacetower before they swear you in. What we are trying to reach is a compromise in a Parliamentary democracy.
Now, we have been, and I hope you agree with this, we have been passing bills of rights and charters in Canada from the early thirties in Saskatchewan, is that correct, and very few of them have teeth. This is one of the main criticisms of the Bar Associations across Canada with the exception of Regina versus, say, Drybones at the early stages. Generally the courts have dismissed these various Bills of Rights. Would you agree with that?
Professor Tarnopolsky: Yes I would.
Mr. Irwin: And even though this document may not be perfect, for years the various bar associations have been pressing for an entrenched constitution for these very reasons, is that correct?
Mr. Borovoy: Among other reasons, yes.
Mr. Irwin: Now, you have serious difficulty and a great deal of criticism with Section 1, which says
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government.
I suggest that if an abuse occurs, then the person who is abused could apply to the courts to see if Parliament has abused that person by legislation and if the courts decide that such abuse has occurred in legislation, and it does not fit in within reasonable limits as are generally accepted in a free and democratic society, then that legislation will be struck down.
Mr. Borovoy: The answer to that is yes but the difficulty is the test. If you are talking about that which is generally
accepted in a free and democratic society with a parliamentary form of government, you may well be talking about everything that Parliament or the legislatures have said is acceptable and to the extent that you are doing that, then it renders the entire charter a verbal illusion.
Mr. Irwin: Well, what is the worst that can happen, then we would have a body of common law and definition that we could then go back to the Charter for amendment under the amending procedures.
The Joint Chairman (Mr. Joyal): Mr. Midanik?
Mr. Midanik: Well, the worst that could happen is that we would be faced with an entrenched charter, which is very difficult with amendment and which we feel and, in the circumstances which you posit is of no particular use. As opposed to that, we would rather go with what we have, which at least has an opportunity for reasonable and much easier amendment.
Mr. Irwin: But have you not agreed to what you have now is really nothing with the exceptions such as Drybones. Now, I have heard it said amongst lawyers, whenever the Bill of Rights-which is a very noble document-is argued in court, you must have a very difficult case.
Mr. Midanik: Well, it may well be, Mr. Chairman, it may well be that at some future date some Parliament will at least start to worry about how that should be amended in order to give a valid and cogent protection to fundamental rights. If faced with a Charter which is entrenched and in the conditions in which you posit and which we feel this Charter is not valid and does not protect us, we are faced with something which is extremely difficult to amend, despite the question of referendum, but it is still very difficult to amend and we would have nothing.
Mr. Irwin: But do you not feel that by going as far as you are suggesting, that we may give too much power to the courts and take away too much power from the parliamentary democracies in the legislatures and that same problem will occur, it will be very difficult to amend the constitution to bring that power back and set the proper balance in a parliamentary democracy.
The Joint Chairman (Mr. Joyal): Mr. Midanik.
Mr. Midanik: That gets into the philosophic questions which Professor Tarnopolsky tried to avoid on the basis of the disagreement. We really are not prepared to pursue that question, although, I point out to you that the courts have a very wide jurisdiction under the BNA Act, as it now stands and have been interpreting Sections 91 and 92 for over a hundred years with some difficulty, but they have been doing it.
We are not briefed to discuss the pros and cons of the philosophic nature of an entrenched Bill of Rights.
Mr. Irwin: Is that not the whole raison d’être of this discussion, how much power are we as legislators going to give up by way of entrenched rights to the courts, to not be touched forever.
The Joint Chairman (Mr. Joyal): Mr. Tarnopolsky.
Professor Tarnopolsky: Mr. Chairman, if I may answer that. I think our position is that you should either fish or cut bait. If you are going to have a bill of rights, make it a bill of rights which cannot be just over-ridden any time that a court is convinced, which we are suggesting would be relatively easy, that the limits are those which are generally acceptable. It would not just be in legislation, because, again, if I could use the Hogan case, I think that it would not be very difficult to convince a court that the practice of the police, namely, how can a lawyer help the chap, let him take the breathalizer, it is probably generally accepted, So that I think the fear of those of our members who support a bill of rights would be that it would be disillusioning, that it would be disappointing for the populace to think that they have a bill of rights which really over-rode inconsistent legislative administrative action to find out it is not. We think that rather than promoting that kind of cynicism, the Parliament should face up to either creating a bill of rights which over-rides or stay with the one which we now have, which we have got some jurisprudence on and there are more cases than just a Drybones case which have been applied with some effect.
Mr. Irwin: I will not follow that up because you mention the Hogan case and remedies and illegal evidence and in your main presentation. Now, will you agree that most of the rules of evidence, such as coercion or force to obtain confessions will still remain, there is no change.
The Joint Chairman (Mr. Joyal): Mr. Tarnopolsky. Professor Tarnopolsky: Yes, with respect to confessions, but not with respect to evidence resulting from confessions which, of course, since the Wray Rule, this is certainly admissible.
Mr. Irwin: Will this constitution change that?
Professor Tarnopolsky: No.
Mr. Irwin: No, what this constitution does not do is change the existing rule, that is admissibility.
Professor Tarnopolsky: No, in fact, this was my argument on Section 26. I am suggesting that Section 26 in effect preserves the Wray rule and preserves the approach of the court in the Hogan case.
Mr. Irwin: Is there not, if we adopt that, the danger of getting into some of the messes that they have in the United States. I think that most of the public would agree with you on the Hogan analogy, most of the public would agree with you that confessions should not be obtained by coercion or trickery or force, but was there not considerable backlash in the States over the last decade or two because confessed murderers who gave confessions without trickery, without coercion, without force, were set free.
The Joint Chairman (Mr. Joyal): Mr. Tarnopolsky.
Professor Tarnopolsky: I think Mr. Borovoy will follow this up as well. We are not suggesting that you substitute the exclusionary rule for Section 26, what we are suggesting is that you have a broad remedies clause in which the court could weigh on the one hand the gravity of the offence, the circumstances and on the other, the seriousness of infringement of the Canadian Bill of Rights and that there are other remedies that might be available.
The other thing in that is that clearly there are alternatives one could use as a means of enforcement, a police complaints tribunal, actions directly against the administrative official or policeman involved.
However, if one provides the court with the flexibility, then you can have the circumstances rendered. We are not, however, suggesting a rigid exclusionary rule.
Mr. Irwin: Mr. Chairman, I would like to follow that up because I understood you were suggesting in cases of any illegal evidence that evidence was not to be used in a court of law?
Professor Tarnopolsky: No, we have not gone that far, but on the other hand we do not want to see the rule continue that the evidence is admissible, which is really what has been tried in the Hogan case, but that rather, again without attempting to draft, if I could draw your attention to the version that you will find in the July document, Section 19 of the July discussion draft has a kind of remedies clause.
If I could draw to your attention another one which is to be found in a study by the Manitoba Law Reform Commission on a possible bill of rights. That, too, has a remedies clause which is very broad, which is basically that the courts should have the power to grant whatever writs, remedies, directions, orders, payment of compensation is necessary for the proper compensation of anyone injured by infringement of the bill. In other words, that kind of a positive remedies clause.
Mr. Irwin: I want to separate remedies from illegal evidence.
Now, I understand remedies and I quite frankly do not agree with it because I think the constitution should be a pure document rather than to set out remedies, but I would like to know what your limits are on illegal evidence. I think that is very important.
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky. Professor Tarnopolsky: Well, Mr. Chairman, may I with respect, suggest that you are asking for the kind of detail on what is illegally obtained evidence that you do not want in detail with respect to the remedies clause. All we are really proposing is that Section 26 would seem to protect the present admissibility rule.
We do not think that admissibility rule should be enshrined. We are not suggesting the total opposite, which is that all illegally obtained evidence be excluded. We are suggesting, however, that the one institution that is in the best circumstances to gauge the extent to which there should be exclusion or other remedies is the court, and that that be given to the court concerned with the issue.
Mr. Irwin: I find that very difficult because either we are going to have penalties against the police officer under the various police acts and allow the evidence, or we are not going to allow the evidence.
Mr. Borovoy: Is not part of our problem, if I may, the distinction between a statutory exercise and a constitutional exercise? If we were now commenting on the Criminal Code and what the rules ought to be, then we would take that as an invitation to make some detailed proposals to you as to when
illegally obtained evidence ought to be suppressed and when it ought to be admissible. However, this is a constitutional exercise where we are suggesting to you that the point of the exercise is to allow the courts to strike this balance in particular cases so as best to vindicate the constitutional rights at issue. That being the case, we are today really making a much more modest recommendation, namely that the courts ought not to be fettered in trying to strike that balance by the existing rules concerning the admissibility of evidence, so that they might make that judgment as a particular case warrants rather than the constitution attempting to resolve in the abstract and a priori all of the possible disputes that might arise.
Mr. Irwin: Thank you, Mr. Borovoy. I would like to get on to the topic of age.
Under the Charter of Rights age is included as an item along with race, national or ethnic origin, colour, religion and sex. Under the Bill of Rights it is excluded, it is not in that column. Do you see this as diluting the interpretation of that particular section? Do you see the inclusion of age in the Charter of Rights as a good thing or should it be separated off into another category?
Mr. Borovoy: The suggestion that I made earlier was that while we would like to see age discrimination prohibited in many contexts, there was some nervousness about establishing a blanket constitutional provision because of the possibilities of some situations arising where age would be an altogether reasonable category of distinction.
That being the case, the suggestion was that it ought not to appear in this form but rather what ought to appear is a general prohibition against unreasonable distinctions or discrimination followed by a selection of some categories that are almost always inappropriate, and there we would say they would be regarded as presumptively unacceptable.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Borovoy. I would like to turn to the honourable Perrin Beatty. Mr.Beatty.
Mr. Beatty: Thank you very much, Mr. Chairman.
Mr. Borovoy and Professor Tarnopolsky, I want to perhaps make two observations at the outset and the first is that many members of the Committee share your concern about the arbitrary timetable which has been set for the Committee. It is very clear that the constitutional changes which we are dealing with are fundamental in nature and that the deadlines which have been imposed upon the Committee and upon Parliament have made it very difficult to have the sort of broad-ranging discussion that there should be before changes of this sort are envisaged.
Secondly, I think as a member of the Committee I was very disturbed and very concerned to hear a group with your credentials as defenders of civil liberties indicate that the provisions of this charter might in fact lead to a diminution of civil liberties in Canada and I think that this Committee would ignore that advice at its peril.
I want to touch on a couple of other areas and I perhaps could go back to the question raised by Mr. Crombie earlier
with Professor Tarnopolsky, and Professor Tarnopolsky, I wonder if I could refer you to the paper which you wrote for the December 1975 Canadian Bar Review entitled the Supreme Court and the Canadian Bill of Rights, and let me perhaps just quote a portion of it. It says this.
Let me state at the outset once again that I am in favour of a written bill of rights and therefore judicial review. I believe this to be compatible with the supremacy of Parliament and that the two, that is judicial review and parliamentary supremacy, are not necessarily incompatible.
Although I believe that the Supreme Court should be able to declare legislation inoperatie if it is inconsistent with the Bill of Rights, nevertheless, I believe that Parliament, cognizant of the fact that in the opinion of the Supreme Court certain legislative measures contrary to the Bill of Rights should be able to decide that the legislation should operate notwithstanding the Bill of Rights. I do not believe that a Supreme Court, even with a written Bill of Rights in the constitution, can ultimately stand in the way of a legislature determined to take certain action.
I am wondering, Professor Tarnopolsky, in that this appears to be somewhat at variance with the position you have expressed today, whether in fact your personal opinions have changed or whether this was what you were alluding to when you referred to the difficulty in representing an organization?
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky.
Professor Tarnopolsky: Thank you. Mr. Chairman. I suppose the other thing I could say is this may be one of the reasons why courts never quote living authors.
I think I have to say, if you will excuse me, that I am not at liberty to express my own views. I am presenting the views of the Canadian Civil Liberties Association and I think one of the other things that one has to acknowledge in the course of this kind of a debate is that at some points, and I think I mentioned this at the beginning, if we were starting from the beginning and let us say the agreement had been that there should be a bill of rights, we would probably have written a very different one, so at a certain point one cannot start and therefore, in a similar kind of way, as an advocate one sometimes argues only that is realizable and not what is ideal.
Mr. Beatty: Thank you, Professor. I will perhaps not pursue that and move on to another area.
I wonder if I can get some guidance from you, I am not a lawyer myself but one of the things which struck me was the wording in Section 7:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof expect in accordance with the principles of fundamental justice.
Now, I have heard the expression used often, as have all members of the Committee, “without regard to due process of law”, but I have never heard the expression “principles of fundamental justice” used before and I am wondering whether we can get some guidance from you as to what the legal effect
of this term would be, what in fact does it mean? I have never heard it used before and I am not quite sure how the courts would interpret that.
The Joint Chairman (Mr. Joyal): Professor Tarnopolsky?
Professor Tarnopolsky: Thank you, Mr. Chairman, It was suggested earlier that the term “principles of fundamental justice” or “principles of natural justice” is a term very commonly know in the field of administrative law with reference to the requirements of a fair hearing, and this has been one of the areas in which there has been the greatest flux in settling the full details. One could start essentially with the two basic requirements that a person has the right to be heard and that he has a right to be heard by someone who is unbiased, and from that flowed a whole number of provisions.
I think our difficulty with this clause, as we have indicated, is that essentially one is talking about an administrative law clause dealing more particularly with determination of property rights, let us say of certification of trade unions, review of administrative agencies, it is not a clause that we have on the whole used with reference to the criminal process in anglo-Canadian jurisprudence and therefore it seems inappropriate.
What would be the extent of it one does not know. Would the courts on the one hand feel that it adds almost nothing outside of the interpretation given to it in the administrative law process or, on the other hand, would they somehow try to equate it with the due process clause, and this is why we have decided that if it does not cover, that is the matter of right to life, liberty and security, if it does not cover anything more from the point of view of administration of justice than is already referred to in Section 8 really through to Section 14, then it is better not to confuse it with a clause there at all.
Mr. Beatty: Thank you. Moving on to Section 15, Mr. Irwin pointed out the fact that in the present Bill of Rights reference is not made to the question of discrimination on the basis of age and I think it raises an interesting question in that Section 15 prevents discrimination on the basis of age and says that everyone has the right to equality before the law.
Now, I am wondering what the application of this would be, for example, to something like drivers licences or, for example, the minimum age enabling people to go legally and purchase alcohol. Would this be truck down on the basis of equality before the law.
Mr. Borovoy: Not necessarily, I think is the answer. However, you may recall my earlier submission to you was that it crates some risks with respect to that. Moreover, as many of us might consider likely, they would not be struck down because a court would be very hard put, in view of the social realities, to strike that down, but in the course of preserving it, may develop some doctrine that could have mischievous consequences in other situations. So that that was why the suggestion we made to you was that it might be better to take it out of, or to non absolutize it, if you like, and talk about unreasonable discrimination and distinctions on the one hand and then refer to certain selective areas that might almost always be considered unreasonable.
Mr. Beatty: Thank you, Mr. Borovoy. I gather that my time, Mr. Chairman, is quickly elapsing but perhaps I could ask one other question. Mr. Robinson alluded earlier to perhaps I could ask one other question. Mr. Robinson alluded earlier to perhaps one of the greatest examples of the deprivation of civil liberties in modern times which was the invocation of the War Measures Act, but I think perhaps in recent years there have been two other instances which stand out in my mind as being of grave concern. The first is that I believe only once in the history of Canada has a newspaper been prosecuted under the Official Secrets Act, and that was the case of the prosecution against the Toronto Sun which had come into possession of documents relating to the extent of Soviet subversion in Canada and then was raised by the RCMP and charged by the government for making the public aware of the information it had gained.
The other that was of great concern to me was the Peter Treu case where I think most members of Parliament would agree that there was harassment of Mr. Treu, and I would like to ask you whether in looking at the provisions that are in the charter, would this charter have prevented this raid and prosecution of the Toronto Sun under the Official Secrets Act, and would it have prevented the harassment of Mr. Treu?
The Joint Chairman (Mr. Joyal): Mr. Borovoy.
Mr. Borovoy: I would be very much afraid that in its current terms it would not provide a basis for challenging those actions. Without going through the litany of sections, first of all the limitation clause would probably protect the actions of the government there because one looks at this as what is reasonable, what is generally accepted in a free and democratic society with a parliamentary system of government. The Official Secrets Act has been accepted in this country for a very long time so on that basis it would be acceptable.
As far as some of the searches and seizures are concerned, all this says is that you are entitled to be protected against searches and seizures unless they are done in accordance with law. Well, the Official Secrets Act provides a certain search power and that becomes the end of the matter.
So the simple answer to your question is: probably this document would not have prevented those actions or given any remedy against them thereafter.
Mr. Beatty: Thank you, Mr. Borovoy. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): In the name of the honourable members of this Committee I would like of course to thank the witnesses and I would like them to accept that we adjourn as we have to go to the House as I can hear the bells for a vote.
Mr. Epp: I believe it is important that I raise this matter at this time. You will notice from the agenda for today that this Committee has to hear five witnesses. During the meetings of
the Subcommittee I and other members raised the difficulties that would occur if witnesses were not given sufficient time to make their case, or members of the Committee could not ask questions regarding the testimony the witnesses had given.
This morning we are now ten minutes beyond the time that we schedule for today for our first witnesses this morning. The witnesses today have spoken about an arbitrary date, the arbitrary date being December 9. That sort of sword hangs over all of us, and what is now happening is that witnesses’ time and members’ time is being contracted to the point where sufficient questioning is simply not possible.
At this point, Mr. Chairman, it is also important for our witnesses-and this is no reflection upon our witnesses here this morning; but there are still three members from our side who would like to ask questions of the witnesses.
I am sure in that questioning other valid points which have been made by the witnesses could be elaborated again. That is now not to happen. In fact, by going an additional ten minutes we only had one hour for questioning.
The witnesses ended their testimony at 12 minutes past 10 o’clock and during their testimony they themselves mentioned that they were trying to be as brief as possible because they also recognized the difficulty that they and others were under in view of the time constraint. So there was very little opportunity for them to elaborate on a number of points raised.
Additionally, they have stressed today, again, that it is important that we give a careful reading-that there is the need for a second look. I believe some honourable Senators are familiar with the principle of sober second thought. It is important for this Committee that, in our scheduling, when we invite witnesses such as the Canadian Civil Liberties Association, who are a national association with members across the country, to attend, that they be given an opportunity to express their viewpoint and that, additionally, in the exchange between witnesses and members, that viewpoint can either be strengthened or clarified. I am suggesting that has not in fact been sufficient today, again.
Further, you will recall that on Friday we had some 61 witnesses who had asked to appear before this Committee. This morning there are 101 witnesses . . .
Mr. McGrath: And that is still growing!
Mr. Epp: And that is prior to the substantial response from ads which have appeared in the major daily newspapers during weekends and a few days ago; and if you were to take a look at the 101 witnesses, Mr. Chairman, and also with the 26 to 27 sittings remaining of the life of this Committee, that means that this Committee has to speed up its process relative to this morning’s proceedings from two witnesses to a minimum of four witnesses per session; or for a day, such as today, that we should hear 12 witnesses. That is the kind of scheduling that we are being asked to follow.
Additionally, I have taken that period of time up to the date of and including December 9. That leaves no time for clause-by-clause review of this important proposed resolution. It leaves no opportunity to ask witnesses to come back; for instance, we have already said to the Minister of Justice that we wanted him back. That does not foreclose whether or not we would like to extend an invitation to the witnesses this morning to come back. There is no opportunity for the writing of the report.
So, I am saying to you, Mr. Chairman, if this Committee is to function smoothly, I believe we have to come back to what is a time-honoured tradition, and that is when .we have witnesses coming, as a minimum, at least we should give them one block and we all understand the block system in the Committees; if there is a block of time, and a morning session, such as we had today, a group such as the Civil Liberties Association would at least have a block of time for their testimony and questions.
Additionally, we are creating other problems. There is another group now waiting to be heard, and we are also not being responsible to them. On the one hand, we are asking them to come and on the other, we are saying that we do not have time.
What I am saying to you, Mr. Chairman, is that the method of approach being used is not sufficient either for the witnesses, the Committee or for a proper study or consideration of the proposed resolution.
The Joint Chairman (Mr. Joyal): I would like to thank Mr. Epp for his point of view which he has just expressed, but I have to remind the honourable members of this Committee, in particular the members of the House of Commons who have to go immediately to the House as we can hear the bells for the vote that I do not have any other choice at the moment, I have to suspend the meeting and ask the honourable Senators to be kind enough to stay in the room as we will be back immediately after the vote to follow on with our deliberations, starting from where Mr. Epp broke the debate.
Mr. Epp: Mr. Chairman, just a procedural matter: Are we having the witnesses before us? Are we resuming with the same witnesses?
The Joint Chairman (Mr. Joyal): According to the agenda that we accepted, the time allotted to the honourable members of the committee and to their witnesses of this morning, the representatives from the Canadian Civil Liberties Association has now elapsed so that, when we will be back after the vote, we normally should start with the representatives from the Positive Action Committee.
But I am in your hands if you have any other points of view when we come back after the vote.
Mr. Epp: Prior to your making that final decision, I would request that when we return we raise that matter at that time in order to complete and conclude the agenda proceedings for the day.
The Joint Chairman (Senator Hays): Honourable members of the Committee, you have heard the divisional bells ringing, and I am told that there are 16 votes which, as you well realize, will take a lot of time. The Joint Chairman and I, with your concurrence, have decided that we should adjourn until 3;30. We apologize to the witnesses, and hope we could have their co-operation by their meeting us at that time.
Mr. McCall and Mr. Paterson are here. Would that be all right with you? Thank you very much. Is there any comment?
Senator Asselin: Did you ask the same witnesses to be here this afternoon?
The Joint Chairman (Senator Hays): Well, it will be the Positive Action Committee who will be here at 3:30. Senator Asselin: Mr. Chairman, before we adjourned, a question was put by Mr. Epp to the effect whether we would decide to hear the witnesses again.
The Joint Chairman (Senator Hays): That is correct. I understand they will be available at 3:30. So there will be both groups, the Canadian Civil Liberties Association and the Positive Action Committee.
We will adjourn now until 3:30.
The Joint Chairman (Mr. Joyal): Certainly.
The committee is adjourned until after the vote.
The Joint Chairman (Mr. Joyal): Order, please. Would those members of the press using camera or sound equipment please leave the room so that the Committee can continue its deliberations.
When we adjourned this morning so that members of Parliament could go to the House for a vote, we were discussing the use of time available to the members of this Committee. When I cut off the discussion, Mr. Epp had the floor.
Consequently, I will now recognize Mr. Epp to ask him whether he had finished developing the point of view he was expressing; if he has finished, I will of course ask for comments from other members.
Mr. Epp: Thank you, Mr. Chairman, and I appreciate your recognizing me and there are a number of other matters that I want to raise in regards to the point of order that I served notice on prior to the votes in the House of Commons.
Mr. Chairman, you and members of the Committee will recall that at that time I made the point that, first of all, witnesses were having difficulty in making their full presentation in view of the foreknowledge that time was limited. Secondly, members of the Committee could not ask questions or ask witnesses to further carry out a point that might have been made in passing.
This morning you will recall, all members will recall that we had one round of questioning, one member from each of the
parties represented around this table and, additionally, we had one additional member, Mr. Beatty, who had an opportunity for ten minutes.
I also pointed out to you at that time that there were a number of other members of our party that were on your list who had asked to be heard.
Further, Mr. Chairman, there is the matter of the numbers of witnesses, and I know because we have the large and the limited number of times in which this Committee will be sitting, namely, 26 additional sittings from this moment on, if the December 9 deadline will be held firm by the government. That would mean that we would have to have on average four witnesses for every session and I think all members would recognize that that becomes an impossible task for all of us.
Additionally, Mr. Chairman, I want to raise this and it is a new point, one I did not make this morning. An umbrella group in the City of Ottawa but representing organizations from across the country have issued a further request to this Committee in terms of the constitutional hearings that this Committee now has responsibility for. That request, Mr. Chairman, is addressed to the two honourable joint Chairmen Hays and Joyal and it is dated November 18, 1980.
It is significant, Mr. Chairman, if you take a look at what the groups are requesting. Generally they are requesting two things: one, that the Committee extend the period of time where written submissions can be made to the Committee, as well as a request to extend the time to a period before the Committee. That is quite apart from any other work the Committee might have to do such as the writing of the report of the clause-by-clause study but it does put the December 9 date into serious question.
It is also significant, Mr. Chairman and colleagues of the Committee, if you take a look at who the groups are. They are not groups with a small membership, in fact, a large following and a large affiliation. For example, the Alberta Women for Constitutional Change, the Anglican Church of Canada through its primate, Primate Scott, the Canadian Association for Adult Education, the Canadian Association of Schools of Social Work, the Canadian Conference of Catholic Bishops, the Canada West Foundation, the Coalition of Provincial Organizations of the Handicapped, the National Action Committee on the Status of Women, the National Anti-Poverty Organization, the National Federation of Business and Professional Women, the National Indian Brotherhood. I might say there, Mr. Chairman, the National Indian Brotherhood is expecting up to 5,000 status Indians in Ottawa at the end of this month and to address the constitutional question. The Presbyterian Church of Canada, Le Groupe Pour Les Droits Politiques Du Québec, Social Planning and Research Council of British Columbia, the Union of British Columbia Indian Chiefs.
Mr. Chairman, additionally from Friday of last week to Tuesday of this week; the number of witnesses that want to appear has grown from 61 to 101. I think it is important that this Committee in terms of addressing itself to the scheduling
of witnesses, as well as the time frame that has been given to us by the government, namely, December 9 and up to this moment at least I have not heard from any of the government members that there is any willingness to re-examine that date. It is imperative that we look at the manner in which we will proceed. If you take a look at the agenda for today, great difficulties have already occurred for that agenda.
So, in order to save time, Mr. Chairman, I will not move a motion today, but I want to serve notice to you and to all members of the Committee that the following motion will be put by me at an appropriate time and I read it and you will notice that it is in keeping also with the spirit and the words of the material that we received from the umbrella organization earlier today; namely, that the Special Joint Committee on the Constitution extend the final date for written submissions or requests to appear before the Committee from Tuesday, November 25 to Wednesday, December 31, 1980.
Our newspaper advertisements, as you will recall, Mr. Chairman, indicated the deadline was November 25. Groups have not only got a difficulty in terms of responding to that date because it is on top of us right now, but additionally, the preparing of a written brief. It is virtually impossible to do that within seven or eight days. So, I have not moved the motion, I have given you notice, Mr. Chairman, and I hope that members of the Committee can think about it and come up with a solution that will make the work of this Committee profitable for all concerned.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp. May I understand that you would agree to send such a notice of motion to the steering committee to a meeting as soon as possible and then have a report of the Subcommittee on the agenda because we have already agreed that any procedural questions should be first discussed with the Subcommittee and then referred to the full Committee.
Mr. Epp: Mr. Chairman, this is not procedural. That is the difficulty your request puts me into for the reason that, in essence, this matter has been discussed by the Subcommittee before and, in fact, a recommendation from the Subcommittee came forward to this Committee, the result of which we see in the list of witnesses for today.
The Joint Chairman (Mr. Joyal): Well, so far as I can remember and I have a seat as you probably know, on the Subcommittee and the Agenda, the discussion to extend the notice published in the papers of this country has not been discussed as such. I remember at our first meeting, we discussed the possibility of publishing ads but that the Subcommittee to my recollection never discussed the possibility of extending the ads in the paper.
But I am in the hands of the Committee on that very aspect. I just make you notice that the question could be discussed. So far you have just given notice. So, it means, as I understand it, there will be a period of time between now and the time that this Committee would have an opportunity to discuss the content of your motion.
My suggestion is to ask for the Subcommittee to discuss that matter before you raise the proper motion on this bill.
Mr. McGrath: Mr. Chairman, on the point of order that you have raised, because that essentially is what it is, only the Committee in plenary can deal with a substantive motion and that is what this is. If the Committee deals affirmatively with the motion, then quite properly it becomes a question for the Subcommittee to deal with; in other words, the Subcommittee then deals on the recommendations of the full Committee.
The Joint Chairman (Mr. Joyal): Mr. Speyer, on a point of order.
Mr. Speyer: The reason I suggest that procedure to you is that, as my colleague has already pointed out, the Subcommittee has already dealt with the order of witnesses, given the timeframe imposed upon us by the Order of the House. We are proposing by this motion that we make a special report to the House to change the order of the House and that I submit to you is a matter for the Committee to deal with and not for the Subcommittee on Agenda and Procedure.
The Joint Chairman (Mr. Joyal): That is a good point. Mr. Robinson?
Mr. Robinson: Mr. Chairman, while I certainly share the concern that has been expressed by Mr. Epp with respect to the large number of delagations who wish to submit briefs and with respect to the length of time that various delegations are being given, I want to focus at this point on the specific delegation which appeared before us this morning.
I am very concerned that the remarks that they made initially indicated that they simply had not had adequate time to prepare a submission for this Committee.
Now, we have asked them, and I believe that they have agreed to prepare a full written submission for the Committee. Mr. Chairman, there were at least four separate points which I raised with the representatives of the Canadian Civil Liberties Association which they admitted frankly they just had not had an opportunity to consider. That is not at all surprising in view of the time limitations we are dealing with here.
In view of that, Mr. Chairman, I would like to propose, and I would hope that a motion would not be required, but I would like to propose that at least in the case of the Civil Liberties Association, that we invite them to submit a written brief and that we invite them to return at a future date to this Committee after the written brief has been submitted in order that we might question them further on this written brief and follow up some of the areas which, unfortunately, they were not in a position to deal with today.
Mr. Chairman, this is the national body of the Canadian Civil Liberties Association. I think they have had an excellent presentation so far, but I believe it is simply inadequate to suggest that in an hour and a half or perhaps a little less than two hours that they can canvass the important questions which have to be canvassed on the matter of the Charter of Rights. If
this kind of courtesy is not to be extended to the Civil Liberties Association, Mr. Chairman, and to other groups, I suggest it might be more appropriate that this Committee move to the Railway Committee Room, which might be more accurately reflecting what is happening in the Committee, if that is not the case.
The Joint Chairman (Mr. Joyal): Any other comment?
Mr. Speyer: I have a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. Speyer, on a point of order.
Mr. Speyer: Mr. Chairman, this morning, we had three gentlemen who were pre-eminent in the field of civil liberties discussing a subject about the further extension or enhancement of civil liberties and I, not being a member of the Committee, would like to have the opportunity for a very short time of addressing certain questions on this specific field to these gentlemen. I am a member of Parliament, I would like that right. I have absolutely no desire to take up the time of the Committee by any type of wasteful questions or matters such as that, but I do want the opportunity to question these gentlemen on an area that gives me a lot of concern. I hope that my friends might accord me that opportunity.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Nystrom.
Mr. Nystrom: I wanted to add, Mr. Chairman, my concern to the time constraints that we are operating under. Jake Epp referred to a number of organizations, he listed about a dozen. There are many others, like, La Fédération des Francophones Hors Québec, we have the Native Council of Canada, we have the Inuit Committee on National Issues and a number of others. I think it is about time this Committee started thinking seriously about the December 9 deadline. It is totally and absolutely unrealistic. We are trying to ram something through here as fundamental as the constitution in a matter of a few weeks, and I find that totally unacceptable from our point of view in our party.
The other comments, a number of comments have been made here that we have now 101 people that have applied to be heard. The effect of the ad is yet to be felt. It was just in the papers a few days ago. We are not giving people time to prepare, we have a group such as the Civil Liberties Association this morning that is a very prominent group with a lot of very learned people and they said to us quite bluntly they did not have time to prepare. If they do not have time to prepare, what about some of the other groups.
This resolution before us is marking a major departure in our country in terms of our laws and I think it is pretty frightening if we have to do this in about four weeks time. It is just not right. It is just not proper.
What we are doing here is passing something that is pretty basic and if it goes through as it is, there are very few amendments. The Supreme Court is going to be making a lot
of decisions for us in this country and to be making those decisions because we have stuck to a December 9 deadline where we ourselves did not have the proper time to properly study and reflect on all the evidence that we are hearing.
This morning we only had three witnesses, three members of this Committee questioned the witnesses and you were very generous to extend the time to allow a fourth. So, that hour and a half time slot in my opinion, for a national group is much too short.
I would like to just reinforce what has been said that for national organizations, for important organizations, for big organizations, we should at least extend the courtesy of a full session before this Committee. That has been the practice in the House of Commons for as many years as I have been here and as far as I know from the very beginning of Committee hearings in this Parliament.
The Joint Chairman (Mr. Joyal: Thank you, Mr. Nystrom.
The honorable senator Goldenberg followed by the honourable Mr. McGrath.
Senator Goldenberg: Thank you, Mr. Chairman. Mr. Epp has raised a number of points on which I want to speak. First of all, it was important to realize that we are dealing with a deadline which has been fixed by Parliament. The deadline was not fixed by this Committee. Senator Asselin may laugh, he was in the Senate when the vote was taken, so, he knows it was passed by the House of Commons and the Senate.
As of now, therefore, we must adapt ourselves to this deadline because in this way we are compelled to proceed quickly, and let me remind you that this is after a summer of the most intensive constitution discussions in Canadian history, and after years of study by committees and task forces.
Now, recognizing this, we on this side were prepared to meet all day Monday and all day Friday. Mr. Epp found this to be too much. We are still prepared to meet all day Mondays and Fridays and if necessary, Saturdays and Sundays if members on the other side so desire. We of course were also prepared to meet on Wednesday evenings but that was changed.
Now, we agreed on the first day that we would ask for briefs and would be selective in the hearing of witnesses. A committee like this cannot operate in any other way. No committee can hear every witness who wishes to appear before it, Mr. Epp said that there were 61 applicants to give evidence, now rising to 101. Surely we cannot hear all of these people unless we want to beat the record of the B and B Commission which sat, I forget, six, eight, ten years.
Now, we are of course obliged to receive briefs, we must receive briefs and we must encourage written submissions and,
as we decided, invite people who want to speak, but we decide who will speak.
What is important in being selective is to cover in as comprehensive a way as possible all aspects of the resolution which we are studying, but this cannot be done in an ideal manner by everyone asking every question he wishes to ask. We would be embarked on an endless task if that is how we proceed.
Let us take a look at what has already been done, We have already covered a large part of the resolution. The Minister of Justice was examined extensively for 13 hours on all aspects but especially on Sections 4 and 5 with respect to the amending procedure. The fact that every member did not agree with every answer does not mean that the subject matter has not received a comprehensive hearing.
Mr. Fairweather gave us a great deal of information and opinion about Sections 1, 6, 15, 24,25 and 26. Mr. Yalden last night dealt extensively with Sections 16 to 23. This morning we heard again a great deal about Sections 1, 15 and 26, and for the first time examined in detail Sections 7 to 14, and I must say I know the people who appeared before us this morning and I congratulate them for having given me a great deal of food for thought. I studied these resolutions but they opened my eyes to certain things.
Now, Sections 2 to 5 are noncontroversial and I think we already have had a good first examination of the resolution.
Now, we have a great number of additional witnesses to cover the same sections and if we listen to them and ask some questions I feel that wo will in the next 10 days cover the resolution in a pretty complete and comprehensive way several times over. There already has been a great deal of repetition, it is unavoidable, but there has been and there will continue to be. I accordingly do not feel that we lose a great deal by imposing limitations on the time of witnesses.
Now, I am glad that Mr. Beatty is amused, he has not given me much occasion to laugh in what he has said. If members want to hear more witnesses we can consider something which was discussed at the beginning, we were all present, we can consider dividing into two subcommittees to hear evidence. This has been done in the past and was very successful at the time of the very complex tax reform measure in 1971.
I would, therefore. recommend in conclusion either that we maintain an agenda of several selected witnesses per day with a time limit per witness or that we break into subcommittees for the next week. In either case, I think we should aim at beginning clause-by-clause study on December the first.
If Mr. Epp has a problem with the deadline, and I do not question his sincerity, he should be raising it not with this Committee but with his House Leader who can always speak to the Government House Leader.
Insofar as the question that he raises is procedural, we agreed at the outset that all procedural questions go to the steering committee; I therefore suggest that in its procedural aspect the matter he is dealing with be referred to that Committee.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Senator Goldenberg.
I shall now give the floor to Mr. McGrath, followed by Mrs. Campbell.
Mr. McGrath: Mr. Chairman, I had hoped that we could have dealt with this matter without having it develop into a full scale procedural debate but that seems to me to be where we are heading and I was surprised, quite frankly, to hear my learned friend, Senator Goldenberg, who has been counsel to so many provincial governments on constitutional studies, and I am sure if anybody were to ask him to be an adviser on a constitutional study that would take into account the whole constitution of Canada and give him a two month deadline, he would laugh at them and walk away.
Senator Goldenberg: Pardon me, Mr. McGrath, we are old friends and I can speak to you. We are not asked to look into the whole constitution of Canada, we are asked to look into a resolution which deals with certain limited matters. Mr. Beatty: And how it affects the constitution.
The Joint Chairman (Mr. Joyal): Mr. McGrath, you have the floor.
Mr. McGrath: Well, Mr. Chairman, in any event I find it difficult to believe that Senator Goldenberg is serious in some of the suggestions he has to make.
For example, he started out his intervention by saying that we are operating under a deadline fixed by Parliament and he went on to say, and I wrote down his words,
we must adapt to that deadline.
Senator Goldenberg: I said as of now.
Mr. McGrath: As of now. Well, Mr. Chairman, Senator Goldenberg, as does every member of the Committee, knows that we are the masters of our own affairs in this Committee and we can in fact, by recommendation in a special report to the House, ask to have our deadline extended. Now, that is precisely what the thrust of my colleague’s motion is. He merely served notice of that motion that at some point in time we are going to have to have our deadline extended and we can do that by a special report to the House.
Senator Goldenberg went on to suggest that we could accommodate the deadline, and indeed many of the witnesses, by breaking down into subcommittees to hear evidence. Well, if he were to check with the rules of the House, Mr. Chairman, he would find that a Special Joint Committee of the House cannot break down into subcommittees without the express permission of the House. In other words, to do what you
suggest, Senator, we would have to report to the House and ask permission to break into subcommittees.
Now, it seems to me that if we are going to report to the House for anything, we should be reporting to the House to ask permission to extend cur deadline. That seems to me to be the only meaningful exercise that we can engage in at this particular time in order to accommodate the number of witnesses before us.
Now, I must suggest that any further consideration of extending the hours of sitting that we already have cannot seriously be entertained because we are now meeting five days a week and four nights a week, and to suggest that we should meet six days or even seven days is, to me, and I say with great respect to Senator Goldenberg, for whom I have the greatest respect, is an absurd suggestion.
Senator Goldenberg: Well, I would not like it myself.
Mr. McGrath: I was merely going to suggest, Mr. Chairman, and I will come to a conclusion very quickly, that you ask if there is a consensus of the Committee to extend the hour for the hearing of the witness currently before us, the Canadian Union of Civil Liberties, in order to give those of us who have not had a chance to question this most important witness, and indeed to give my colleague, Mr. Speaker, who is not a member of the Committee, an opportunity to question him as well. If there is such a consensus, then we can proceed immediately.
The Joint Chairman (Mr. Joyal): I would like to thank you, Mr. McGrath, for raising that point. I will ask for the questions, I have a list of members who want to speak on the points raised by Mr. Epp. Just before I pass the floor to Miss Campbell I just want to note that in our terms of reference, the Committee has the power to appoint from among its members such subcommittees as may be deemed advisable. So you were right by saying that the Joint Committee cannot split unless there is a specific authorization and I just wanted you to note that in our terms of reference there was such a point and I do not want to discuss it with you, it is not my role as a chairman.
Mr. McGrath: You saved me the trouble of having to read Beauchesne all over again.
The Joint Chairman (Mr. Joyal): Thank you. I take notice of the question that you want me to put to this Committee and before that I would like to recognize a number of our colleagues.
Mr. McGrath: Is there consent to continue on with the Canadian Union of Civil Liberties?
The Joint Chairman (Mr. Joyal): Before putting that question, because it will change our agenda, I would like to hear my other colleagues on the very point raised by Mr. Epp, if you do not mind.
Madam Campbell followed by the honourable Perrin Beatty.
Miss Campbell Mr. Chairman, I would just like to say that we started this day on a subagenda and I feel that what has
been raised here is, aside from the deadline which I think should go back to the House and the House Leaders on a procedural point from the House, I think that the steering committee has dealt with it, we all agreed to the agenda and there are many witnesses here and I say that knowing lull well that I was perhaps the next questioner and I would like to have questioned them and I am sure that Mr. Robinson’s suggestion that the steering committee look at another time for the Civil Liberties after they have perhaps submitted a brief, that should be brought to the attention of the steering committee. It is the same way as with the Human Rights Commission, when they were here we cut their time.
So I feel that the witnesses have come from a distance today and we are going to be caught with the vote tonight probably in the House on Third Reading, and our time is getting short for today and nobody has made a suggestion that we sit after the vote to accommodate those witnesses that we have told would be heard today and I feel that we should proceed, that the steering committee knows the concern of this Committee, that the time element of some of these national groups should be looked at and perhaps we should continue with the witnesses that are here ready to go ahead.
The Joint Chairman (Mr. Joyal): Thank you, Miss Campbell.
The Honourable Perrin Beatty.
I will try to be very brief. I had not intended to intervene until Senator Goldenberg made his intervention and unfortunately in his script there was not included any reference to the fact that when this matter was before the Senate a firm undertaking was given by the Government House Leader in the Senate that if the members of this Committee found the timetable imposed by the Government was unreasonable, that the Committee would have the right to report to both Houses to ask that our deadline be extended, and I think what Mr. Epp is envisaging is that the steering committee or the full Committee might consider the need or the advisability of reporting to both Houses to request that deadline be extended. It is an arbitrary deadline, it is one for which we have never received any justification on this Committee, Mr. Chairman, and I think we should hold the Government House Leader to his word.
I think I would also bring to the Committee’s attention, and particularly to Senator Goldenberg, the fact that the Prime Minister, in the course of the past week, indicated that he was prepared to be flexible on this question of a deadline if a request were put to him. So that the Committee should not find itself simply bound by the order of reference from the House without recognizing the fact that we do have the right and the authority, and perhaps the responsibility, to report back to the House if we feel that it is necessary to hear further witnesses.
I want to respond specifically to a couple of points made by Senator Goldenberg and the first was that he proposed we should split into subcommittees to hear groups. Mr. Chairman, I think, particularly if you take a look at the calibre of groups and individuals who ask to come before this Committee, that
we would be doing a grave injustice to them to say that after they have gone to considerable expense to draw up briefs on an issue which they consider to be among the most important facing Canada today, and with considerable diffuculty to come to Ottawa to place briefs before the Committee, I would think it would be extremely discourteous on the part of the Committee to say: I am sorry but we are too busy, we are not prepared to have you appear before the full Committee and instead we are going to farm you out to a subcommittee and split it up.
In addition to that, the work of this Committee is fundamental. The Prime Minister in his address to the nation made it very clear that he felt that the issues which are being dealt with by this Committee were of the utmost importance to all Canadians. Mr. Chairman, as a member of this Committee, I feel it is incumbent upon me to be present to the greatest extent possible to hear presentations made by interested groups and individuals about the Constitution of Canada. If I am to do my job and other members of the Committee are to do their job as members of the Committee, it is going to be essential that each of us are aware of the contents of each of the briefs submitted to the Committee and that each of us have the chance, if we have questions, to put those questions to the interested individuals and groups appearing before the Committee.
So the concept of dividing up into subcommittees, of only some members hearing delegations coming at considerable expense with considerable difficulty to Ottawa, would both be insulting, in my opinion, Mr. Chairman, to the groups who have asked to appear before us, and secondly, would prevent us as members of the Committee from discharging our responsibilities to fully hear all of the briefs and to raise questions on matters which are still of concern to us.
In addition, to that, I might point out that Senator Goldenberg proposed a December I deadline for beginning work on drafting a report. The problem with this is that between now and December I there are only about 18 sessions of the Committee left. We have had, as Senator Goldenberg recognized, over 100 interested groups and individuals who want to be heard on their constitution and it would be absurd to suggest that we would be able to cull it out in such a way that it would not do a grave injustice to many Canadians who feel very strongly that they have a right to be heard before this Committee.
Mr. Chairman, it certainly is agreeable to me, and I think to all the members on this side, that the steering committee should take a look at this issue and should decide whether to report back to the full Committee to request that we make a report to both houses to extend that artificial and arbitrary deadline which has been imposed upon us by the government, but I would like to indicate from the outset the position taken by our party is that we want the fullest possible opportunity for interested Canadians to be heard about their constitution because the fundamental issue that we must not lose sight of at any time before this Committee is that the constitution of Canada does not belong to the politicians, it belongs to the people of Canada. It is not something to be decided behind closed doors or among a closed meeting of politicians or after
we have culled out groups who would be appropriate to appear before us from those other groups who would like to be heard, but rather it should be the result of a process where there is the fullest possible consultation with the people of Canada, where they have a chance to be heard and where they do not find the same sort of closure being imposed on them as was imposed on the House of Commons on the second reading debate when we found that the House of Commons was gagged.
So that the position that our party would be taking is that interested groups and individuals who have something to offer to this discussion, which is fundamental, in the words of the Prime Minister, should have a chance to be heard and should not have themselves cut short by this arbitrary deadline which has never been justified, either to the Committee or to the Canadian people.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Beatty.
Senator Goldenberg: One question to Mr. Beatty.
The Joint Chairman (Mr. Joyal): Mr. Goldenberg would like the floor to ask a question.
I hope it will be short.
Senator Goldenberg: It will be very short, Mr. Chairman.
All I wanted to know, Mr. Beatty, is this: you said that the constitution belongs to the people of Canada. I agree with you whole heartedly. How is it, then, that you oppose any suggestion of a referendum which would leave matters in the hands of the people of Canada to whom it belongs.
Mr. Beatty: Senator Goldenberg, I do not impose any suggestion of a referendum. What I have said and what my colleagues have said is that the proposals included in the material before the Committee today could have a very serious effect on civil liberties in Canada and could be very divisive, but surely even you, Senator Goldenberg would not take the position-well, perhaps you have, but you cannot adequately defend the position that interested Canadians, wanting to be heard before the parliamentary Committee studying the most fundamental law in the land should be prevented from being heard.
Senator Goldenberg, I put it to you, which of these groups, such as the Anglican Church of Canada, or the National Indian Brotherhood, or the Presbyterian Church of Canada or the Coalition of Provincial Organizations for the Handicapped, or which of the others from the l0l groups and individuals who have asked to appear before us would you deny that right to be heard on their Constitution? Which ones do you feel are so inconsequential that they are not entitled to be heard, because certainly, Sir, if you agree with me that the constitution belongs to the people of Canada, all of these groups have a right to make their case before the Committee.
The Joint Chairman (Mr. Joyal): I would like the honourable members of this Committee to stick to the very point that we have under discussion because I think it is the decision of this Committee to move ahead, The only point I want to make,
and it is the procedural aspect, it concerns the Notice of Motion as put by Mr. Epp. It is a notice of my opinion if you want to receive it that way.
Mr. Epp: I will receive it in the same manner as you received mine.
The Joint Chairman (Mr. Joyal): The very point is that you mentioned in your motion the extension to December 31 and, as you know, our terms of reference provide that our existence is to December 9 so I would be of the opinion of your colleague, Mr. McGrath, a very learned and experienced member of Parliament, that your motion should be drafted in a way that we report to the House for an extension of time instead of having us make a decision on the date of December 31. That is the only point I want to raise at this point so if you have to consider drafting a motion, I would like that you draft it taking into consideration that very point that you raised yourself on the second tour when you spoke about the issue.
Mr. Epp: Mr. Chairman, I would like to end the debate and get on with the witnesses but I would suggest to you that this matter be raised in the Subcommittee, brought back to this Committee for discussion and that that be placed on the agenda of the first meeting of the Subcommittee, and if that is acceptable to the Committee Members I would like to move a motion relative to the witnesses that appeared before the Committee this morning.
The Joint Chairman (Mr. Joyal): So I understand that Mr. Epp wants me to see if there is a consensus that we send that question to the Subcommittee and the second point is that we move ahead with the witnesses that we have this morning.
Are the honourable members and senators agreed that this question be referred to the subcommittee on the agenda and procedure?
Some hon. Members: Agreed.
The Joint Chairman (Mr. Joyal): Agreed.
We are unanimous on this point.
Are the honourable members and senators agreed that we should continue our discussion with the representatives of the Canadian Civil Liberties Association?
Mr. Mackasey: Until what time, Mr. Chairman?
The Joint Chairman (Mr. Joyal): I am in the hands of this Committee because as you already know we agreed that we would hear this afternoon the Canadian Jewish Congress at 3:30 and that we would hear after the Canadian Jewish Congress, the Federation of Canadian Municipalities, but I understand from the consultation that I had previous to this meeting that our meeting with the Federation of Canadian Municipalities has been postponed because of the discussion that we have had on the use of time, so that I am in the hands of this Committee as to deciding how long we should continue the discussion with the honourable members and the representatives of the Canadian Civil Liberties Association.
Mr. Speyer has already said that he wants to question them so I understand in the Chair that there is at least one speaker on the opposition side and I had two, the honourable Senator Roblin and the honourable John Fraser, too, is on my list on the Official Opposition side. Mr. Robinson.
Mr. Mackasey: Mr, Chairman, just on a point of order because the people in the audience may have felt that unintentionally you failed to mention the presence also of the positive action . . .
The Joint Chairman (Mr. Joyal): Yes, exactly. There is too on our agenda, it was on our agenda for 11 o’clock this morning, the Positive Action Committee, [Translation] the positive action committee and as I understand it they are also to be heard today. So before deciding, honourable members might take into consideration that both the Canadian Jewish Congress and the Positive Action Committee are available today to pursue our debate.
Mr. Warren Allmand has asked to speak, I had already recognized Mr. Robinson and then Mr. Allmand.
Mr. Allmand, I have already recognized Mr. Robinson and you are the next on my list.
Mr. Robinson: Mr. Chairman, I understand the concern of Mr. Speyer and others. I wonder, though, in view of the fact that there are a number of witnesses who are backlogged here, who are waiting to appear, whether we could not agree as a Committee to invite the Canadian Civil Liberties Association to return, Mr. Speyer and others might then be given the opportunity to question them and then in the meantime they submit to us their written brief. If it was understood that they would be able to return and we would have ample opportunity upon their return to question them further, I would suggest we then go on to other witnesses and review their written brief prior to their second appearance.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
Mr. Allmand: With the permission of the honourable members of the Committee.
I will be very short, Mr. Chairman. I want to recommend that in the future-and I want to recommend this very strongly to the Committee, that in the future you limit discussion to questions of agenda, procedure and order to the end of meetings or to the end of the day, and not to the times when witnesses have been scheduled, unless the point of order relates to the business at hand.
It has now been an hour since we have returned from the House of Commons to hear witnesses and an hour has been spent on questions which, I think, should be discussed when witnesses are not here.
So I would like you to adopt a procedure in the future which would limit those things to another period of time and not when you have called the witnesses.
The Joint Chairman (Mr. Joyal): Thank you for expressing your opinion, Mr. Allmand. But you will realize that it is not the role of the Chair to impose upon members of this Commit-
tee how they should use their time. The Chair is in the hands of this Committee, and if the Committee decides to discuss the very basic point of the extension of its life as a committee, I think it is a matter for consideration and requires consideration in a proper way, Now that is the way I have received your suggestion, but it is the way in which I, too, have interpreted the responsibility which I share with the honourable Senator Hays. We are both in the hands of this Committee and when an important issue, such as the life of this Committee is under discussion, I think I have to receive the opinions of the honourable members of this Committee.
Mr. Allmand: I agree. But, Mr. Chairman, I said for the future maybe the Committee could adopt rules to discuss these kinds of things at the end of the day and not when they have witnesses. I do not think they should be eliminated from discussion.
The Joint Chairman (Mr. Joyal): So, we are back to the suggestion put forward that we should request the representatives of the Canadian Civil Liberties Association to consider the possibility of preparing a written submission and then the Subcommittee might decide on another opportunity when they would be heard. That is the type of amendment that Mr. Robinson would like to put to the motion or suggestion or question as put forward by Mr. McGrath.
Are there any other comments on that very point? Mr. Corbin.
Mr. Corbin: I support whole-heartedly Mr. Robinson’s proposal, and I think that we should now move on to the Positive Action Committee, and the Canadian Jewish Congress, or at least to those other persons who have been requested to appear as witnesses here today.
The Joint Chairman (Mr. Joyal): Mrs. Campbell.
Miss Campbell: There is only one element of that. I support Mr. Robinson, but you should continue the list that is presently before you as to speakers as of now.
The Joint Chairman (Mr. Joyal): Monsieur Epp.
Mr. Epp: Mr. Chairman, two things, in order to try and get the Committee on to the witnesses. One, I would request, through you, Mr. Chairman, that on behalf of the Committee you ask the Civil Liberties Association whether that is acceptable to them, namely, whether they could appear again.
Secondly, I raised this matter earlier today saying that if we had witnesses scheduled so tightly, we would back them up and they would be sitting here, having come here at their own expense, and using their time, and in view of that, I would suggest that they get on with the scheduled witnesses under the proviso that we ask the Civil Liberties Association to appear again if acceptable to them.
The Joint Chairman (Mr. Joyal): It seems there is consensus, On behalf of the honourable members of this committee, I shall certainly ask the representatives from the Canadian Association for Civil Liberties if they agree with the honourable members’ proposal.
If you agree then I shall ask the representatives of the Canadian Jewish Congress to please come forward [Text] if they are in the hall and I would like to invite them to the table so that we could introduce them.
Mr. Nystrom: Mr. Chairman, this morning the positive Action Committee was to come before the Jewish Congress. Are we changing the order now?
The Joint Chairman (Mr. Joyal): Well, we are in the hands of the Committee. As you know, for 3:30 o’clock we have the Canadian Jewish Congress and the Federation of Canadian Municipalities, I understand, after consultations with the research staff, that the Federation of Canadian Municipalities have been postponed to Thursday night, November 20.
So far as the Positive Action Committee is concerned, I understand too, that they are at our disposal and can be heard this afternoon or later on today.
But if you advise that we should proceed with the Positive Action Committee, then I understand they are ready to proceed.
Senator Asselin: On a point of order, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Senator Asselin.
Senator Asselin: I believe we should maintain the order in which the groups are suppose to be heard by the committee.
Indeed, you are interchanging certain groups which should be heard before other groups, when in fact the Positive Action Committee was to be heard this afternoon. Why postpone matters? Let us just follow the agenda.
The Joint Chairman (Mr. Joyal): The reason why I suggested proceeding with the Canadian Jewish Congress is that both witnesses are at our disposal and there is no difficulty hearing one instead of the other. But I am entirely in your hands as regards your suggestion. If you agree we can proceed with the Committee d’action positive.
Some hon. Members: Agreed.
The Joint Chairman (Mr. Joyal): Then would the representatives of the Positive Action Committee, Misters Paterson and McCall, please come forward to the witness table.
Miss Campbell: Before you start, where is the Advisory Council on the Status of Women? Were they not to appear tonight?
The Joint Chairman (Mr. Joyal): yes, it is a very good question, Mrs. Campbell, because they were already scheduled for our meeting at 8 ‘o’clock tonight. I understanð, too, they will be with us on probably Thursday at 8 o,clock p.m., so we will have an opportunity to hear the Federation of Canadian Municipalities at 9:30 o’clock Thursday, November 20.
Miss Campbell: Thank you.
The Joint Chairman (Mr. Joyal): Then, on behalf of the honourable members of this committee, I welcome the repre-
sentatives of the Positive Action Committee, and I would ask the president, Mr. McCall, or the co-president, Mr. Alex Paterson, to introduce the lady with them, then to make an opening statement before we proceed to questions.
Mr. Alex Paterson (Co-president, Positive Action Committee): Thank you, Mr. Chairman, Mr. Cochairman
My name is Alex Paterson, and I am Cochairman, of the Positive Action Committee. With me is Mr. Stores McCall, my Cochairman, and Mrs. Suzanne Côté-Gotlieb, our Executive Director.
First, I would like to comment briefly on the origin of the Positive Action Committee. Secondly, I want to discuss the referendum issue proposed in the resolution; then I will deal briefly with the linguistic rights issue, except for the question of education dealt with in Section 23. At the conclusion of my remarks, my Co-chairman, Mr. McCall, will deal with Section 23, the issue of education, and the issue of the amending formula.
The Positive Action Committee was formed on December 23, 1976 shortly after the election of the Parti Québécois in Quebec. It was formed initially by 15 members who had a concern for the future role of the non-French speaking people of Quebec, in Quebec, and for the future of Quebec within Canada.
After the initial meetings in 1977, it grew to 115 members including the chairmen of the various education sectors of Quebec, English-speaking sectors, including the union leaders, the chairmen of school boards, university principals and heads of various associations, and added to that a group of businessmen
By the spring of 1977 we were 115 approximately, and then went public and today we have a membership of approximately 50,000 people. We have taken positions on the constitution since 1977 early 1978, presenting our brief to the Pepin- Robarts Commission in January, 1978 and to the Justice Committee of the Ontario Legislature in 1978, and continuing in the constitutional debate to the referendum where we actively participated in some 75 riding committees in Quebec as well as the umbrella committee. I therefore wish, first, to address the question of the referendum proposed in the resolution, not from the position of an expert in an academic or political science sense, or even as a lawyer, but more from the experience of a group of people who knew nothing about a referendum a couple of years ago but who have experienced on a door-to-door basis, on a poll-by-poll basis, a referendum very recently in Quebec.
We would urge this Committee to consider seriously, or to reconsider seriously, the proposition in the resolution in relation to a referendum; because it has been our experience that while you may put a question, such as was put in Newfoundland: “Do you want to join Canada?” or the question that was
put in Britain, “Dou you want to join the Common Market?”, in a referendum and have people understand the issue and to vote on it, the questions which were put in the Quebec referendum and the questions proposed here as to whether one amending formula or another is appropriate, we submit would defy (a) an intelligent answer in the referendum, and (b) would lead to a very divisive exercise in Canada.
Mr. Chairman, it would also lead, of course, to provincial premiers going across this country and taking issue, perhaps with an amending formula proposed by the federal government; but more importantly it would put to the people a proposition which we suspect, following our experience in Quebec, would be very difficult for them to seize upon and intelligently make a choice upon; because we can assure you, from our experience that the issue of sovereignty association and of renewed federalism, was an extremely difficult issue to obtain comprehension on a door-to-door basis from all sides, and we cannot conceive of an amending formula, technical as it may be, could be a question which you could put to the public and obtain an easy answer, an easy answer “en complète connaissance de cause”.
So our first submission, if you will, on the process is that the question of going to a referendum be reconsidered. The other question on the process is the question of the amending formula which my Joint Chairman will deal with at a later time.
On the question of linguistic rights which has been in the forefront of our concern from the very beginning of the Positive Action Committee, we wish to raise in general the issue that, what has been normally discussed as linguistic rights, the series of linguistic rights described by the Pepin-Robarts Commission, by the Beige Paper, by the Canadian Bar Association, with the exception of the education right, seems to have been, to all intents and purposes, forgotten, or certainly dropped in the present resolution.
So we return with a strong recommendation and we urge this Committee to reconsider, not new particular concepts, but concepts which have been discussed over and over and over again in the past decade in Canada as ones that are worthy of entrenchment.
The first question which you have heard a great deal about—I understand from Mr. Yalden—is a question of the extension of Section 133 to New Brunswick and Ontario. I do not propose to go over the argument. It is in our brief, but I would like just to refer you particularly to page I I of the French text because I think here as anglophone Quebeckers, we can bring a perspective to the rest of the country from our own experience.
We say at page 11—and I quote:
As English speaking Quebecers we have borne witness to the use of both languages not only in the Legislature but also before the courts in our province. Whether it is Montreal where there are enearly one million English
speaking people or in the Beauce where only a handful reside, whether it be a civil or criminal trial, any witness or litigant can testify or plead in both languages. Even under Bill 101, this right, while limited for corporations in civil trials, never attempted to prevent witnesses or litigants from speaking English in the courts. The bilingual courts of Quebec are a source of pride to our bar and bench and an example to our country.
To give a personal example, when I was a third year student, I went to the Beauce during summer and I was often in the courthouse and even in the Beauce where I was almost the only English speaking person there, it was always possible and I was always welcome to speak as a witness or as a lawyer in English.
In my fourth year, I went to Rimouski for a whole summer and even though I was almost the only English speaking person in Rimouski, once again, I was always welcomed when I spoke English before the bench in Rimouski.
Now, when people from Ontario tell me it is impossible, it is not practical because we do not have enough French speaking people in certain areas of Ontario I wonder, since it is possible in Rimouski, since it is possible in St-Georges-de-Beauce, since it is possible everywhere in Quebec for an English speaking person to speak English before the courts, how is it that in Ontario it is impossible to address a court in French?
So, in the heart of the Positive Action Committee I think we would like to extend this right to speak in the legislatures of the provinces and in the courts, civil and criminal, in English and French at the present time, taking to a great degree the experience as reported by the Pepin-Robarts Commission in the hearings they had across the country, we have limited in our brief the plea that this be extended at least to New Brunswick and Ontario. We say, going one step further, that we hope, once it has been implemented in these two provinces, as it is in the provinces of Quebec and Manitoba, that the neighbouring provinces will then gain steam from the experience and realize that it is not a limiting factor, and while it may have some practical difficulties and incur some costs, the enriching ability to proceed in both languages across this country will, and should, reach the feelings of every Canadian and every part of the country, so that ultimately we have bilingualism in the courts and in the legislature.
I think it unnecessary to mention for more than a moment the question of bilingualism in the criminal courts. It is inconceivable to us, who have had the experience of seeing people have the ability to be tried in English or French in Quebec, that any person should be put on trial where their liberty or even their life is at stake, it is inconceivable to us that those people should not have the right to be tried in this country in English and French, not just wherever the numbers warrant, but everywhere in Canada.
The other aspect to our brief, the concept is found in the Beige Paper. It was not mentioned I think by the Canadian
Bar and perhaps in some other briefs, is the right to have access to health and social services wherever the numbers warrant in English and French.
We raise this point urgently in Quebec because although we have had, unlike the other provinces in most cases, we have had our hospitals that are recognized as English speaking hospitals. We have had our social service institutions that are recognized in the same way. We have seen in the last five to ten years an erosion of the possibility of these services off the Island of Montreal. We give as examples in our brief the Jeffrey Hale Hospital in Quebec that was certainly started and existed for many years as an English speaking hospital, now for demographic reasons is not. We have seen the Brome-Missisquoi Hospital in Cowansville slowly now unable to deliver, in its entirety, services to the English speaking population. We have seen the same thing at the Barrie Memorial Hospital in Ormstown, we have seen problems arise in Ville Marie Social Service Centre which is the main institution that delivers health services to the English speaking population on the Island of Montreal and now, due to sectorization which I will not go into details to this Committee, but its ability to deliver services to people outside the particular geographical area that the government has given to it in which to supply the services is now somewhat threatened.
Entrenchment of the right to health and social services would be a big step towards guaranteeing that in the future if the demography of the City of Montreal changes and if the demography off Island continues to change because there there is no statistical argument, the fact is that the English speaking population off Island is diminishing, the entrenchment of these rights would ensure that the delivery of social services which is, in our estimation, a cultural event when you are treating a person for a problem of old age, when you are treating a teenager for pregnancy, counselling, when you are doing marriage counselling, it is a cultural problem. In this country, surely we should be able to ensure people that they have those problems dealt with in English and French and even in other languages where possible, but when it comes to enshrinement, at least that the right to have these services in the English or French language should be entrenched.
We have been told by our friends in the other provinces that services in themselves are not a must, the right to administer the institutions that deliver those services is key. So, they have pleaded and we will plead in education that is not sufficient to have the services, the entrenchment of the right to administer should also be there.
With that, I simply conclude and turn the microphone to my friend, Mr. McCall, on the note that we sing a tune of entrenchment for all the minotory French and English people across this country in the hope that it will unite and not divide because we are convinced, having lived through the experience
in the legislatures and in the courts of Quebec, that it is a unifying factor, bilingualism, in these institutions and it is a unifying feature for Canada that we believe could be held up to an example to the world in the next constitution of Canada.
The Joint Chairman (Senator Hays): Thank you, Mr. Paterson. Mr. McCall?
Mr. S. McCall (Positive Action Committee): Mr. Chairman, I will be quite brief. I want to make three remarks about minority language education rights and then say something about the amending formula.
I want to read our proposed change, an amendment to Section 23 which is to be found on page 13 of our brief. As you will see, it is shorter and I think considerably more simple than what is in the government’s resolution. Our proposal for minority language education is that all persons whose first language learned and still understood is that of the French of English language minority of the province in which they reside or to which they move have the right to have their children receive their university education in that language.
Now, that proposal differs in two important respects from the government’s proposal. First of all, it does not restrict the class of people who have this right to Canadian citizens. It says all persons, not all citizens of Canada. The reason for our recommended change is as follows, that at the moment we have a situation where, because of Bill 101, if you come to Quebec from Manitoba or from the United States, then even if your children are in the middle of their schooling, you must take them out of their school and put them in a French school. You do not any longer have the right to send your child to an English school, even though these English schools exist and the structure exists in the Province of Quebec.
Now, the government’s proposal would certainly change, would eliminate this impossibility for people coming from Manitoba, from Canadian citizens from other provinces, but it would do nothing to change the situation for someone coming to Quebec from the United States or England or some other country, some person whose first language, whose mother tongue is English and whose children may be in the middle of their schooling.
One of the major preoccupations, one of the ¡major thrusts of the Positive Action Committee is to preserve a vitality and to chart a future for Montreal as an international city where people of all languages and all cultures will be welcome and will be encouraged to come. We cannot do this, we cannot accomplish this aim if there is this continued restriction for non-Canadians that they are forced and no longer allowed to send their children to English schools.
So, that is the reason that we recommend very strongly that the restriction to Canadian citizens be removed and that the right to send one’s child to the school of their mother tongue be extended to all people and not just Canadian citizens.
Secondly, Mr. Chairman, we remove the restrictions contained in the words
“where numbers warrant”.
Just think, gentlemen, of the present of a child in Saskatchewan or Manitoba and the child asks:
“Daddy, do I have the right to go to a French school?”
According to the government’s proposal, the answer would be:
“Yes, my child, you have the right to be educated “in that minority language . . . in an area of the province in which the number of children of such citizens is sufficient to warrant the provision out of public funds of minority language educational facilities in that area”.”
Mr. Chairman, is this really a right or not? What are you going to tell your child when you read this section of the resolution?
It is for that reason, Mr. Chairman, because we find that physiology clumsy and impractical and difficult of application, perhaps even impossible of application that we recommend this change. We cannot see a court upholding the right of a student to go to a French school in another province or, even for that matter, to an English school in Quebec, although, we already have that right, because the defense would always be urged that the number of students does not justify the expense of creating a school, of creating a class and we can see endless litigation, Mr. Chairman, revolving around this point [Translation] where numbers warrant.
We recommend, therefore, that this restriction be removed as it is in fact in the Beige paper of the Parti Liberal du Quebec and that it be made an unconditional right for all citizens, for all residents anywhere in Canada to have mother tongue education in one of the two of Canada’s two official languages. We have done this for many years in Quebec and we have the structure, it can be done. There will be expenses no doubt but if we are to be serious, Mr. Chairman, about Canada being a bilingual Canada, in some official sense bilingual, then we must be prepared to bear the cost of having the minorities educate their children in their mother tongue. This we regard as absolutely essential for the survival, the creativity and the contributory existence of these minorities in all the provinces across Canada.
Just as a sideline, Mr. Chairman, we see these minorities as playing an essential role in Canada’s future. Without these minorities, without these official language minorities in Canada’s ten provinces, the nine English language minorities and the one French language minority in Quebec, we can see Canada moving towards a monolithic, geographically separated conglomeration of two societies, each unilingual; French
speaking in Quebec and English speaking in all the other provinces. It seems to us if this geographical separating out of Canada’s population takes place, then the political separation will not be far behind.
For those of us who believe in the future of Canada, therefore, that we must stay together as one country, we think that every step possible must be taken to ensure the life and vitality and creativity and continued existence of the official language minorities in every province.
Thirdly, as Mr. Paterson mentioned in the case of having social service institutions, we believe it essential not only to have the right to send one’s child to a French school or to an English school, but also for the right of each minority, each official language minority to administer the schools and the educational institutions.
This point came out very clearly in the desire of the francophones in the Ottawa-Carleton School Board Region to have their own school board. If a minority is to be creative, is to be vital, it cannot merely exist at the discretion of its provincial government receiving the regulations and structures which are given to it by that government, but must create its own structures, must control its own structures, particularly in the field of education and health and social services.
So, we recommend, therefore, Mr. Chairman, not only that each citizen, each person, rather, be given the right to have his child receive instruction in the official language, in the minority language of his province, but also that the provincial minority groups have the right to administer their own educational institutions.
Lastly, Mr. Chairman, I would like to say a word or two about the amending formula. One of the most frequently heard charges brought against the government in putting forward this resolution is that in acting entirely on their own, unilaterally, albeit, after a lot of consultation which came to nothing this summer with the provincial governments, that they are doing violence to the idea of the Canadian federation, that they are breaking the Canadian family in some way.
I think, Mr, Chairman, that a lot of these objections could be overcome if we could make one more sincere effort to reach agreement on one limited subject, namely, an amending formula. From what we hear, there was only a very little distance to go at the time of the First Minister’s meeting in September before arriving at a consensus concerning an amending formula.
So, what we are urging, Mr. Chairman, is that you and the Government of Canada, you request the Government of Canada to make another effort, Surely in Canada we can find and agree upon an amending formula without having to go to a foreign country and surely we can do it without that amending formula being imposed on us. We can agree on an amending formula. If we cannot, if the time is too short and if after one more sincere try to arrive at such an amending formula we still fail, then I think, Mr. Chairman, we have no alternative but to accept the government resolution and to proceed to the
amending formula that they propose which would come into effect after a period of two years.
But before we get to that point, we do feel that one more effort should be made to reach consensus with the provinces on this matter of the amending formula.
Thank you very much, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Mr. McCall. I have Senator Asselin, followed by Honourable Mr. Nystrom.
Senator Asselin: Thank you, Mr. Chairman.
First I would like to congratulate our fellow Quebeckers on their very interesting story on the different points included in our proposed resolution. Your testimony is especially important in view of the fact that in Canada you are the minority which get the best treatment from its provincial government, be it a Liberal, Union Nationale or Péquiste government.
I think that your testimony today is going to please our fellow Quebecker across the table who has often told the committee, as a member of the anglophone minority in Quebec, and Mr. Mackasey has often said this, that the anglophone minority was exceptionally well treated in Quebec, and that francophones living in other provinces in a minority position should get the same treatment.
Having said this, I repeat that you have raised extremely important points for the study of this proposed resolution.
First, I would like to ask you perhaps to provide us with more information, more clarification on Section 42 which you mentioned in your brief.
You said, and correctly I think, that the concept of a national referendum did not appear to you entirely adequate under the circumstances, since in Quebec, we experienced a similar situation last year, and tremendous difficulties had to be overcome for the population of Quebec to give an intelligent answer to the referendum question.
When this proposed resolution was presented, we were told that the referendum provision in Section 42 existed just to break any deadlock which might occur between the provinces and the federal government.
If such is the case, we claim that some other formula might be used, but in the case of a deadlock, could you suggest some alternatives to a national referendum; if it really was impossible for the provinces and the federal government to agree, perhaps on the amending formula which you mentioned in your testimony, do you have in mind some other formula which might be used to break this deadlock which has been discussed since this proposed resolution was presented?
Mr. Paterson: To begin with, Senator Asselin, I must apologize for not mentioning the county of Charlevoix; I did
spend my entire life near La Malbaie, and we received the same welcome I mentioned earlier when we used English in the law court there.
In answer to your question, I would like to first say quite frankly that we have great hope that the new round of meetings which we proposed will succeed. We do not think the public can understand why the politicians or the premiers are unable to reach agreement on an amending formula.
As a lawyer, I feel that this is a fairly technical question, I realize that there are all sorts of trade-offs involved, but I do not think the public can accept the fact no amending formula can be found before going to Westminster. That is the first step which must be taken, our first proposal, which is that we must try once again to discuss not every issue but only the amending formula.
We hope that if we are successful, the problem will be resolved.
Secondly, it is true that after patriation there will be a two-year period to discuss an amending formula once more.
But if a deadlock continues, we will end up having recourse perhaps to Section 41, or two years will be spent trying to find another formula.
But to answer your question directly as to whether or not we have some other idea in mind, I must answer that we do not have any other solution to suggest.
Senator Asselin: Mr. Paterson, could you tell the committee what you consider the main objections you have to the use of a referendum; since you witnessed, as I did, the use of this mechanism in Quebec, could you tell the committee what major objections you have to the use of the referendum formula?
Mr. Paterson: Yes; I think I will answer your question in English, that will be much faster.
I think the first problem with a referendum I think we all know, I think we all appreciate, is that it has got to be an emotionally devisive situation. More than any other thing it divides people on all sorts of lines that are not the normal political lines that we are used to historically living through.
The country to a degree, as the province I think we saw, stands still during the period of a referendum. People in other countries of the world, people thinking of investing, people thinking of coming here, they say, well, let us wait and see what happens in that referendum before we move forward. That was a serious problem in the province. We saw business moving out, we saw people moving out because they were not sure or at least people leaving before they invested further, before they renewed their plans, and I cannot conceive why, if we have the same experience and the same kind of debate in Canada, it would not have the same effect on the whole of Canada. With the economic problems that we have in this country I cannot see why we should throw a referendum as oil, if you will, on top of the fire to give ourselves a further
problem, and I think that if the First Ministers can realize that and can be pushed by a unanimous and nonpartisan push from this Committee to have another crack at it, I hope with those considerations, with the experience of Quebec, with the problems of referendums, with the divisive effect of the referendum, may be able to come up with something that we understand, rightly or wrongly, from the people behind the scenes in the negotiations they were not that far from reaching.
Senator Asselin: With your permission, Mr. Paterson, I would like to move on to a new subject with you or your neighbour.
Yesterday the Commissioner of Official Languages told us that over the past few years the public and the provincial governments had made considerable progress towards recognizing. minority language rights in several provinces.
Now we know that the governments of several provinces object to enshrining or including a charter of rights in the Constitution. Given the fact that major objections have been expressed by provinces with large minorities, is it not possible that as a result, the understanding which the provincial governments of each province have of their minority might dwindle? If we force the provinces to accept a charter of rights imposed on them unilaterally and whose elements they have not agreed to, is it not possible, are you not afraid, that in the future certain provincial governments will show a certain resistance to equitable handling of francophone or anglophone minority rights in the various provinces?
Mr. Paterson: If I may, Mr. Chairman, I will answer in English. [Text]I think that the importance of entrenching these rights in our constitution stems from the very nature of the majority-minority dialogue or dialectic within each society. I think when times are going well the minorities need not fear anything from the majority, but if times become difficult then we find that if the fate of the minority is in effect in the hands of a Parliament where the majority has the votes, that if the shoe pinches the vote can always go against the minority. For that reason we believe it to be essential that these rights be entrenched in our constitution, that these minorities be protected against something which may never happen, we may never see in our lifetime a situation where any province would really wish to deprive its minority of its rights, but the entrenchment should be there in case things become difficult.
We cannot foresee, Senator, what could happen in the future. The purpose of entrenchment, why we cling so strongly to it, is that the minorities need that protection and the individuals need that protection.
Senator Asselin: It is clear that you would agree with me that the Charter of Rights as written in this proposed resolution infringes in many areas on provincial jurisdictions, since many provinces also have charters of rights and according to Section 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.” This means that the federal Charter of Rights has supremacy over provincial charters of rights. So do you not think that the federal government’s infringement on rights which are the exclusive domain of the provinces might give rise to some resistance on the part of the provinces towards resolving the constitutional deadlock?
Mr. Paterson: We have seen what happens when a province like Manitoba wishes to take the fate of its minorities into its hands. It will wipe out with a stroke of the legislative pen a protection for its minority. Everything we can do to strengthen these protections for minorities by entrenching them in the constitution will give more reason for the minorities to feel secure and expose them less to the mercy of their provincial governments.
Now, you say there is not a danger that the entrenching of these rights would invade a domain of provincial competence. When it comes, it seems to me, Senator Asselin, to the right of a parent to instruct his child in the mother tongue for the official language minorities of Canada, this right must be guaranteed, it seems to me, across Canada; it cannot be left to the discretion of the individual provinces to decide. This is a right we wish every Canadian to have no matter in what province he resides, for that reason we think it is essential that rights of these kinds be entrenched and it is not in fact an invasion of the powers and competences of the particular provinces.
Senator Asselin: Earlier, you also mentioned extending the application of Section 133 to Ontario and New Brunswick.
Obviously, your Positive Action Committee has no branch offices, if you will, in the other provinces. Nonetheless, it is certain that you must have fairly close relationships with the various anglophone majority language groups in other provinces.
Does your committee intend to familiarize the anglophone majority with the situation, especially in Ontario, to ask them to put pressure on their government to have Section 133 extended to Ontario?
Mr. McCall: We have already done precisely that. We presented a brief before the Ontario committee a year ago. , . One and one-half years ago, on precisely those issues. We have sent briefs and telegrams to Premier Davis, Mr. McMurthry, et cetera, and we are in constant contact with francophone Ontarians; this is how we have applied pressure.
Senator Asselin: Mr. Chairman, I will let my colleagues ask other questions.
Thank you, gentlemen.
The Joint Chairman (Senator Hays): Mr. Nystrom followed by Mr. Mackasey.
Mr. Nystrom: Thank you very much, Mr, Chairman.
I want to pick up where Senator Asselin left off on Section 133 and first of all compliment you on your statements about it being extended to Ontario and New Brunswick in particular. I often thought that the rules that apply in Manitoba and Quebec should also apply in the other two provinces where we
have the largest minorities of francophones in this country and I want to ask you as a Quebecois who would be involved in the question of the future of your province and the future of our country for the last three or four years, how important symbolically is it for the future unity of this country for Quebecois to have the same rules apply in Ontario apply in Ontario as apply in Quebec?
Mr. McCall: If I may just say a word on that, I think it is very important that Quebec, and leaving Manitoba aside, that Quebec not be the only province where these bilingual rights are entrenched, not be the only province where laws must be published and passed in both languages, where both versions are official, not be the only province where the courts are bilingual. It places too much, if I can put it that way, of the burden of bilingualism on us in Quebec and Quebec then can always say: what are the other provinces doing? They are not doing anything. They are not giving their French speaking minorities the same rights and privileges that we give the English speaking minority in Quebec.
For that reason, and also you mention the numbers game, there are in Manitoba, Ontario and New Brunswick approximately the same number of francophones as there are anglophones in Quebec. Surely, Mr. Nystrom, what is sauce for the goose is sauce for the gander. If Section 133 is entrenched in Quebec it should also be entrenched in at least these provinces. We do not want to even necessarily restrict it to those provinces because who knows, in the future may be, there may even now be significant Francophone minorities in other provinces so that we would should consider eventually the extension of Section 133 to other provinces as well.
Mr. Nystrom: Under Section 43 of the Resolution other provinces can opt in and I think your idea is a positive one. Mr, Mackasey has said many times in Parliament and before this Committee that Quebec has set a very fine example under the Liberal Party and the Party Quebecois for its treatment of the anglophone minority and I want to say that I concur 100 per cent with him and I am glad to see that you are repeating the same sentiments here today.
Mr. Paterson: I do not think we would go quite that far but we will wait for Mr. Mackasey’s question.
Mr. Nystrom: I am also very curious to hear you say that in terms of Quebeckers’ perception of the country, it is very important that the same rules apply in Ontario as apply in Quebec.
I also want to ask you about the process. You suggested perhaps the only solution is to go back to the First Ministers’ Conference, to meet again and try and come up with a new amending formula. You have spoken about the potential divisiveness of the referendum and you speak, of course, historically in Quebec, not only the referendum of a few months ago but also of conscription back in 1941.
I would like to ask you as residents of Quebec if this resolution were to go through as it is basically unamended except perhaps a bit of tinkering, I would like to ask you whether or not in your opinion that would be divisive? Would it do more to tear Quebeckers away from the rest of Canada than to unite them? I think constitution building should be consensus building and should be bringing people together, and I note in your province that not only the Prime Minister of Quebec, Mr. Lévesque, but the Leader of the Opposition, Mr. Ryan and the Union National Party, many, many organizations in the province including all the major trade unions in the province are taking a very, very strong stand against the resolution or against the process, against unilateral action, Mr. Ryan has talked about taking Mr. Trudeau to court, the Quebec government is now involved in that process. And if there are no changes, just how divisible would it be? Would it be something that would be a very negative thing for Quebeeckers’ perception of our country?
Mr. Paterson: I think we have to answer you in this way, that there is no doubt that if this resolution went through without any further discussion of an amending formula, without any further attempt to get that amending formula, by every statement of every political leader and every political party and every French speaking editorialist in Quebec, it would be at that level very unpopular and worse than unpopular, it would be seen to be an attack on the federal system as such.
I think we have to add, though, a reserve to that, that there may be a considerable gap in the thinking of the people on the street and the leaders and the editorialists on this issue, and I say that without any scientific polling information or anything of that nature, but if you speak to people who are in touch with people, and I include the MNA’s and the members of parliament and so on, they seem to be getting, a great number of them, I think the vast majority you speak to, a different reading. Perhaps because the people yet have not seized on the issue, technical as it is, of an amending formula, the various powers that should be exercised by the Federal government alone, the provinces alone and other things together but I would have to report to you, with no scientific back up to what I say, that I do not think the general man on the street in Quebec, be he English speaking or French speaking, is yet as hung up about the process as are the editorialists and even the political leaders.
However, having said that, I come back to our point that if we can achieve an amending formula, I think that would go a long way to allaying at least the concerns of federalist Quebeckers. I think we would have to go a lot more than that to allay the concerns of separatist Quebeckers, but I think the federalist Quebeckers, il they felt we had a Canadian made amending formula, could then look at the issue of patriation with considerably less concern.
Mr. Nystrom: You said that if it went through unchanged it would be very unpopular, you said in fact it would be worse than unpopular in your opinion, in other words you consider it a step backwards for the future of our country?
Mr. McCall: Could I perhaps add a note on that, Mr. Nystrom? I think that what Mr. Paterson said is very true, that there may very well be a gap between the positions expressed by the political leaders and what the ordinary person in the street feels about this whole project. I think that Mr. Ryan himself was not unanimously supported by his own caucus in the stand that he proposed taking, that there were a large number of the Quebec Liberal Party caucus who were urging him to pay attention to the feedback they were getting from their own constituents, which was basically to support the entrenching of rights, to support the patriation of our constitution.
As in many provinces in Canada, there is in Quebec strong feeling in favour of both these things, entrenchment and patriation. So you get this funny paradox that the leaders are saying one thing and the people in the street are thinking another, and that is true in Quebec as it is in other provinces.
Mr. Nystrom: I was not asking you about patriation or entrenchment, as a matter of fact it depends on how one patriates and what one entrenches that becomes important.
You referred to public opinion and two weeks ago there was a poll published in Quebec that said 48 per cent of the people backed the stand taken by their provincial leaders on the constitutional resolution and 33 per cent backed the stand of the Prime Minister. This is three weeks ago and I do not know if that is indicative or not of public opinion.
The other questions I wanted asked were also along the lines of your concern about a referendum, and you have had an experience in Quebec about how divisive referendums can be, and back in 1941 we had the conscription referendum where English Canada voted one way and French Canada voted the other way and you just recently had another referendum on the future of your province in confederation. Under Section 39 of the resolution before us there is a possibility, under Sections 38 and 39 there is a possibility of having a referendum to choose our amending formula. Under Section 39 it says that if there is a referendum, a simple majority of persons voting will decide what our amending formula is going to be.
Do you see some potential problems with that, some potential fears with that, potential divisiveness with that because there is a chance once again you can have French Canada voting one way and English Canada the other way?
Mr. Paterson: I think in fairness we have to say that in our considerable consultations on this with some four committees in preparation of the brief we did not go into that question so I think for us to give our personal reaction here would not be perhaps fair to our membership.
Mr. Nystrom: I will switch, then, to the area of Section 23 of the resolution which is on education, and I think most members of the House support the proposition that minorities should be given as many rights as possible. There is an argument, of course, on whether or not that is best achieved by
entrenchment or not entrenching and so on and as we all know education comes under the purview now of the provincial governments and the Prime Minister has been quoting the St. Andrew’s agreement where in 1978 the Premiers unanimously agreed that minorities should be given as much access as possible to education in their own language and you made this a very important part of your presentation.
However, I want to get on to another part of that communique and it is the question of where numbers warrant, who decides where numbers warrant. As is written today in the resolution where numbers warrant it when it comes to education, it will be decided in essence by the courts and Mr. Chrétien has confirmed this a few weeks ago in the House. But if you look at Sections 16 to 21, we talk about federal bilingualism and services in both languages by the federal parliament where “numbers warrant’, is determined by the Parliament of Canada-and one of the things the premiers talked about in their communique, Mr. Chairman, was that they agreed that minorities should have education rights, but they also said since education comes under provincial jurisdiction and since all the provinces are so different, Quebec and Ontario are good examples of that, the definition of “where numbers warrant” should be left to the provinces.
I wonder if you have given any thought to that possibility of perhaps amending the resolution to say “where reasonable because of the social and demographic differences in this country, where numbers warrant it should be left to the province”?
If you include “where reasonable” and some provinces are unreasonable, then there is still some recourse to the courts, but we would not be doing as much interfering with provincial rights over education.
Mr. McCall: Well, Mr. Nystrom, we did actually recommend removing the provision “where numbers warrant” entirely. We feel this should be a universal right available to all people in Canada, and not a matter where numbers warrant, whether it be decided by the courts or by the provincial legislature; that each person resident in Canada, if he belongs to the official language minority of his province, has the right to have his child educated in that language; so we would thereby avoid quarrels of all kinds concerning whether numbers warrant or not. Everyone would, in fact, have the right, as they do currently in Quebec because of the denominational school system.
Mr. Nystrom: That may create also some other quarrels-I hope it would not-because education comes under the purview of the provinces, and you might have such things as busing and the distance, the problem of the rural communities and the like; and I wonder if you have thought of the compromise saying “where reasonable”, where the provinces are acting in a reasonable manner they should have the power to make the determination, because you say in Quebec you do not have such a regulation.
I understand the same thing is true in the province of New Brunswick. In the province of-Manitoba-and Mt. Roblin will correct me, if I am wrong-but I believe the number is 23.
Senator Roblin: 23 at any one time.
Mr. Nystrom: You have some pretty reasonable regulations in these three provinces, and I think other provinces are moving in the same direction. I can speak personally of Saskatchewan and Alberta; perhaps in B.C.
I am wondering whether you would consider as a compromise taking a look at amending the clause in that direction, which would tend to aggravate to a lesser extent, some of the provincial sensitivities, in that they feel that the jurisdictions are being invaded unilaterally by the Parliament of Canada?
Mr. McCall: I think we would not, and I could give you other reasons, that the Beige Paper which debated this issue over a considerable amount of time in the Quebec Liberal Party, recommends that any French or English-speaking person or any native person should have the right to request and receive primary and secondary level education for their children in their mother tongue in the province in which they reside, although there is, of course “where numbers warrant” in matters of access to health and social services and some other matters. So you would hardly find us asking for anything less than the Quebec Liberal Party is prepared to give us in the province of Quebec, and demanding any less for the rest of the country-and I think the Beige Paper must be considered as a very global approach, not simply a Quebec approach; it is a very global approach to the constitution. When we come to linguistic rights we have debated this issue in Quebec with at least the Quebec Liberal Party, who takes the same position on that issue as we do and does not have the restriction of “where numbers warrant”.
Mr. Nystrom: You will notice in the Beige Paper they use a qualifying word, that they talk about the right to request. I guess my time has run out.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Mackasey followed by Senator Tremblay.
Mr. Mackasey: Thank you, Mr. Chairman.
My first words are, of course, to welcome the positive Action Committee back. The last time we met we were in another assembly in Quebec debating or discussing aspects of Bill 101.
I have, Mr. Nystrom, admiration for Quebec and hope for the happy relationship between the English and French in that great province; but I am not too enthusiastic in leaving you with the mistaken impression that I approve in any shape or form the Parti Quebecois in the political sense, But many of the members of the Parti Quebecois, when I was in the National Assembly, encouraged my presence, and I have to say that never in my eighteen months there was my use of English ever in the assembly ridiculed or questioned by the government.
But to say the English-speaking minority in Quebec are better off today than they were five years ago would be stretching the truth to quite an absurdity.
I prefer to see Canada in the future as Quebec was five years ago. I am not talking about some other positive aspects of Bill 101. The positive change came when it was realized by
everybody, including the English-speaking people, that the language of the workforce would be French. This, more than anything will direct the new Canadian, immigrants, if you like, towards the culture of the majority, if only because of the realization that they must reflect and use that language in the workplace if they intend to remain in Quebec in years to come.
Mr. McCall and Mr. Paterson, I am at a disadvantage, in that I am a great admirer of both of you in view of the work you have both done in the past five years.
However, I must express some reservations about your brief. I am not sure which part is yours and which is Mr. McCall’s. But it is very ambivalent in places, I would suggest, and perhaps it reflects the torturous paths you had to follow in recent years, in the area of survival as an English-speaking minority, if you like, because you certainly reflect the better features of that province and you want to see the English-speaking community live and take part and be active in the French-speaking community of Quebec. But when you say in your brief, as Mr. McCall said in his closing remarks, that you would like to see the premiers sit down and try again to come up with an amending formula, to me that reflects the torture with which you have written this.
I think it is naive and rather unrealistic to think that public opinion since this proposed resolution was brought forward in the House of Commons is such that the premiers have any change of heart.
I would like just to go back to the last day and a half of that conferene. One was very concerned, as one who still has a child in the Quebec school system, even though I live in another province, I was concerned when the premiers at the moment of truth demanded and insisted once again to trade rights for other sections of the constitution.
So, how do you reach these Premiers not individually, but the premiers in the role, who for over 50 years have made it impossible for us to find an amending formula? What has changed in that short period of time since the last conference, and since we proposed to do what we are doing, and which makes you really think that they are prepared now to sit down and come up with an amending formula, and perhaps, equally important, an amending formula and a minimum bill of rights which we are trying to enshrine here?
At noon I went through some of my papers because I had to make sure that I was right. I think it should go on record that, in the light of the reservations that the Position Action Committee has about the procedure we are following—and reflected in the agonizing language on page 4 where you talk about taking into account the weight of public opinion in favour of patriation, and the realization of the damage to federalism that the imposition of an amending formula by the federal government could cause, and the humiliating spectre of premiers and federal government ministers flying back and
forth to London to press their respective cases before the Parliament of Westminster; you say surely an amending formula can now be found in Canada. Well, the problem is it has not been found in 50 years.
Now, we can go back to the Dominion-Provincial Conference of 1927; it is a long time ago, and an amending formula was not found. It was rejected by a number of the provincial representatives at the time. You can move on to l93l when a lot of positive work was done in preparation for the Statute of Westminster, and there we could not agree to an amending formula.
Then we moved on to the Committee of this very house in 1935, and, again, it was beyond the ability of the Premiers and the federal representatives to come up with an amending formula. We move on to 1936 when they carried on, and again, no amending formula; 1950: again, the one thing which could not be reached—an agreement on an amending formula. 1960, 1961, the same impasse-no amending formula, The sixth effort, 1964; no amending formula.
I could go on and on. Mr. McCall you know the seventh one when we almost did it: Victoria, for a day or two. The tragedy of it is that it is because these people who speak for Canadians at all levels, not only federally, but provincially, put material things before human rights. We have seen such terrible spectacles as the expulsion or internment of Japanese, the Jehovah’s Witnesses, the preamble to Bill I which was struck down by the Human Rights Commission of the province of Quebec; the denial of basic linguistic and human rights to the French-speaking people of Manitoba and other provinces; the slow progress of Acadians—all these things are the result of the inability of nine or ten premiers to sit down and work out an amending formula which should, as you suggest, not be beyond our ability if they place people before their own selfish interests. That is what is happening in this country! That is why this government has found it necessary to act as they have acted. I speak passionately because I am concerned, as you are, about referenda and things of that sort and the affect they can have on the unity of this country.
But I see no other solution, Mr. McCall, to what you are proposing that the premiers sit down and find an amending formula.
There is nothing in the past history, or, again at this conference, which indicates that they can do that. You may recall, Mr. Paterson, because of your tremendous dedication to unity, that if ever there was a moment when we should have arrived at an amending formula enshrining individual rights, it was after the Quebec referendum in which you played a very active part.
Canadians right across this land said, in effect, they were prepared to do what was necessary at the provincial and federal levels to weld this country together; and here we are—
a month apart from that referendum and it is as far away as it was one year, two years or 50 years ago.
Senator Asselin made an eloquent plea for Section 133. We should not have to be asking Ontario and New Brunswick to opt in; we should not have to be forcing them in. The concern for national unity in Ontario should be such that Premier Davis should demand the right to be enshrined in that constitution!
But the dilemma of the Federal Government and the Prime Minister of this country is such that, on the one hand, if he were to proceed to enshrine more rights, freedom of choice, across Canada, the right of every Canadian to be educated in either of the two official languages wherever he lives in this country, and the right of all Canadians to speak in either of the two official languages when dealing with their provincial or federal governments that would be the type of constitution which I would like to see and you would like to see. But even you expressed reservations about the procedure, Even you pointed out—quite-properly—to the Prime Minister and to all of us, how potentially devisive our action of just going to the very minimum, to bring back the constitution with a proposed amending formula, and some very basic human rights which—for instance, Section 1—you could drive a truck through.
Why is Section 1 so loosely drawn up? Because we are so sensitive to provincial legislation in this field and the need to bring our aspirations down to the lowest common denominator.
I am sorry if I have used up so much time, but I am a little charged up about it, and perhaps because you have touched a raw nerve when you tell me that what we are doing could be devisive, and perhaps when the chips are down we should call another conference with these premiers and hope that somehow they would come up with an amending formula.
What do you base that hope on? What do you see that we do not see which would indicate a change of heart on the part of the Premiers?
Mr. McCall: First of all, Mr. Mackasey, the Positive Action Committee is never happy when a man of your stature leaves Quebec and goes to Ontario; but we are still ready to talk to you and will continue to talk to you today.
The second thing is that I would like to draw your attention to the first page of our brief which is along the lines of what you said.
We accept the position of French as the primary language of communication, and believe that Canada’s future depends upon a close partnership of its French-English speaking communities that will overcome the antagonisms of the past.
We are not here to cry. We, like you, appreciate the dialogue and the relationship between the English and French speaking people of Quebec, and nothing that has happened in the last four years has destroyed the basic integrity of the people remaining in Quebec in a dialogue in that way.
Thirdly, in relation to the paragraph of our brief to which you have referred as somwehat tortuous, as a matter of fact one of our members suggested that what we really should say is that the only person who is going to win by this proposition is Freddie Laker, because there will be so many people flying back and forth across to London if the negotiations go on] which is something we want to avoid.
But let me say this about the amending formula. You will recall, as other members who were involved, that when the Pro-Canada Committee was first formed, seven federalist political parties, people said we could not agree to anything, we could not agree to bylaws or to ads-and they were right! For a period of time we could agree to nothing. But when the time came for the referendum, all these impossibilities fell to one side, and with the pressure of the future of the country upon us, we were able to agree-the federalist forces-even though we had different political ideas as to what the country should look like after the referendum.
What we are saying is nothing more than that. Sure, there have been many, many attempts and many failures. But there comes a time, in the life of a country, when we must have a majority, and faced with the situation we are in here, we think the time has come, and that this Committee can set aside partisan feelings and say: “let us have one last crack at the amending formula,” be it at a first ministers’ conference, in the corridors, or wherever you resolve these things.
I do not think the people of Canada would be that shocked by the suggestion that, to avoid what may follow, we should have that last attempt. If that fails, then I am with you that there is no alternative.
Mr. Mackasey: We have 24 months from the adoption of this resolution and the passage from England, for the provinces to do exactly what you have suggested-to come up with an amending formula that all ten premiers hopefully would agree with. Someone might say, “Well the federal government may not,” but I am saying the federal government would be subject to that same public persuasion that you have discussed.
So, it is not all off; in other words, the next 24 months could be very fundamental and I just hope that the Canadian public will exert the kind of pressure that I know you do consciously and persistently and there should perhaps be more positive action across the country.
Thank you very much.
Mr. Paterson: Thank you.
The Joint Chairman (Senator Hays): Thank you, Mr. Mackasey. Senator Tremblay.
Senator Tremblay: You can understand, Mr. Chairman, how tempting it would be for me to pick up on what Mr. Mackasey has said.
This is not the time, however, to get involved in a discussion between members of the committee. In all fairness to the witnesses who are appearing today, we are not here to subject them to our propaganda, but to try and understand the impact and significance of their proposals. This is what I shall do, rather than engaging in a debate with my colleague on the other side.
I would first like to join Senator Asselin in thanking you for your presentation and for all that you have done in Quebec, your involvement in the Quebec community and the approach that your group has chosen to take.
I would first like some clarification on the part of your proposal that deals with mother tongue, which you believe should be used as a standard to establish the right of minorities to be educated in their own language.
You agree with the criterion used in the proposed resolution, that of first language learned and still understood
You know, as well if not better than I, that Law 101 sets a standard which is equivalent to the mother tongue, but which is also based on a more easily observable factor, that is, the language in which one or the other of a child’s parents received his or her primary education.
I am sure that you have considered the advantages and disadvantages of both formulae. I would like you to explain more fully why you chose the first language learned and still understood over the language in which one or the other of the parents attended primary school.
Mr. McCall: With our permission, Mr. Senator . . .
The chief difficulty with the primary schooling of the parents criterion is this, that many people in Quebec in good faith sent their children to school in French a generation ago so that they could participate actively. I mean, English speaking people sent their children to school in French so that they could really be integrated in Quebec society. Now, under the criterion of Bill l0l they find that they have lost forever the possibility of sending their grandchildren to school in English. In good faith they made this Act.
So, for that reason, we cannot buy the criterion of primary school education of the parents because many people would, by that criterion, have for ever given up their right to send their children to school in English.
Senator Tremblay: I imagine that the same would apply to a good number of francophones who have been sending their children to English schools for generations.
Thank you for your explanation. That is one aspect I had not thought about.
I would now like to move on to the patriation process and try once more to clarify your views.
If I have understood your position correctly, the one thing that is absolutely clear is that you would eliminate proposed section 42 and everything related to it in the proposal. I think that is quite clear.
This leaves us with section 41 as a possible amending formula. You are suggesting that a new conference be held to deal exclusively with patriation and the Victoria formula, for any other formula, perhaps even the Vancouver resolution, which I imagine you would include as well.
The conference would not deal with the enshrinement of rights, or the charter of rights, or anything else. Is that what you are proposing?
Mr. McCall: Yes.
Senator Tremblay: Unlike Mr. Mackasey, I share your optimism and feel that this sort of conference could be a success.
To pursue what Mr. Mackasey was saying, you also make a proposal on page 5 of your brief which I am having trouble understanding. I quote:
If an amending formula is beyond the imagination and spirit of compromise of the first ministers, then we see no alternative but to proceed with the proposed resolution, amended to reflect the wishes of Canadians as expressed to your Commmittee.
My question is: Are you implying that unilateral action could be taken, but that it would be limited to the amending formula?
Mr. McCall: Yes.
Senator Tremblay: When you say:
Amended to reflect the wishes of Canadians as expressed to your Committee.
you mean that we should go to London with nothing but the amending formula.
Is that right?
Mr. Paterson: One moment, please. We would like to consult before answering.
I do not think that is right.
What we are suggesting is that they try one more time. If they cannot come up with an amending formula after further negotiations, you should go to London.
Mr. McCall: With the charter.
Senator Tremblay: With the charter?
Mr. McCall: With the charter.
Senator Tremblay: With a better charter.
Mr. McCall: A better charter.
Senator Tremblay: I will not get involved in a discussion with our witnesses. They have clarified the two points which were causing me concern and I now know what their views are.
That was the object of my questions.
Thank you, gentlemen.
The Joint Chairman (Senator Hays): Thank you, Senator Tremblay.
Mr. Allmand, with the consent.
Mr. Allmand: Thank you. Mr. Paterson and the Positive Action Group I also want to welcome to Ottawa.
Now, I want to put, I do not have much time, some questions to you. With respect to the formula that you propose to the amendment of Section 23, under that formula that you propose, it seems to me that a person could come from Greece to Montreal or, let us say, from Vietnam to Ottawa at the age of four years of age and could never send their children in Quebec to an English school even though when they were six years of age they went into the English system because their mother language was originally Greek or Italian and they could never send their children to an English school even though they went to an English school and were part of the English speaking community; tho same thing with the Vietnamese or the Lebanese who come to Ottawa and might have gone to a French school because their mother language was Arabic or Vietnamese, could never send their children to French schools in Ontario.
That proposal that you are making seems to me to be just as unfair as the one that is presently there or the one that is in Quebec Bill 101. How do you justify that situation, that somebody in the situations that I have described should never have the right even though they have been in the English and French community of the respective provinces and that they should never have the right to send their children to the schools they went to.
Mr. McCall: Mr. Chairman, let me make it clear that we do not like the idea, have never liked the idea of forcing little children into schools against the will of their parents. We believe that essentially it is the parents prerogative and right to decide what kind of education his or her child should receive. Legislation which dictates which school children should go to strikes us as being analagous to legislation which tells people which books they may read or may not read.
However, that being said, Mr. Chairman, because of the sensitivity that we have to the fears, perhaps the real or imaginary fears, but the fears anyway of our francophone colleagues in Quebec, many of whom are members of the Positive Action Committee because amongst our 50 thousand members, we do have maybe 11 to 15 per cent francophones. The fears that if they open the doors unrestrictedly to the English schooling systsm the demographic balance of the province will be upset and there were signs in the 1960s and early 1970s that the demographic balance perhaps was being upset.
In deference as I say to those fears, we, for the time being, agreed to this restriction that those whose mother tongue is not
either French or English, should not have the choice to send their children to the minority language educational system of their province. But we also hope that when additional demographic data become available, that the fears of our francophone colleagues in Quebec will become allayed on this. We feel that in fact the effect of Bill 101 has to not only write the demographic balance, but to tilt it in the other direction so that any minority is not threatened in its numbers, it is not the francophones of Quebec it is the anglophones or the nonfrancophone community of Quebec.
We hope that when additional data becomes available that our francophone colleagues will find that their fears are allayed and when they come in their turn to say that we are asking for free choice for our own children to send them to the English school, then we will back them and we will back them, back the nonfrancophones and the nonanglophones in their legitimate demands for the schooling, for the right to choose the schooling of their children.
But we do feel constraint, Mr. Chairman, by our sensitivity for the feelings of our francophone colleagues in Quebec who do feel very strongly on this point to go along for the time being with their criterion of mother tongue.
Mr. Allmand: Well, your answer tells me that you are not too enthusiastic for your own proposal but you are accepting it as probably a lesser of evils.
I am also very sensitive to those fears in the Province of Quebec on behalf of my francophone friends and co-citizens of the Province, but I think myself that there are other ways of allaying those fears through these kinds of formula.
I want to move on to another point. In your suggestions regarding Section 23, you recommend that we remove the clause at the end which requires that you have a sufficient number of citizens in the province in question, et cetera, et cetera, et cetera and you said that this never existed in Quebec. That is not my understanding of Quebec history and Quebec law.
Outside of Montreal, in order to have a minority school and those minority schools are based on religious boards rather than on language boards, the old Quebec Education Act I think stipulated there had to be at least 50 families, I believe that was the number of the minority religious groups in order to get a minority school board; in other words, if you were in a county where the majority was Catholic and usually it was French Catholic, if you want a minority Protestant board, most of the Protestants were English speaking, you had to have a certain number of families. You also knew that when you were opting for that, when you made that application, that those families had to pay for the school in the area at the time. If you lived in Bedford or Cowansville, or wherever, in those parts of rural Quebec, when you asked for the minority schools the numbers were stipulated and you had to pay. So, you did not have a situation where two anglophone families in St-Georges de Beauce were asking for a school or, let us say, in Montreal West where francophones were asking for a minority school. So, it is my understanding there always have been
those provisions and it has not been open-ended, as you suggest.
Mr. Paterson: Warren, what happened before you and I were-but I do know this, as recently as 1975 . . .
Mr. Allmand: It would be a long time ago.
Mr. Paterson: Each child was bussed from St-Georges de Beauce to Quebec City in order to get an English education every day. So that the attempt and the effect of attempt to provide English speaking education had very little to do with where the numbers warranted it. If a child was out in an isolated area, even alone, that child was brought to the closest place, even though that place was 160, 150 miles away.
Mr. Allmand: Yes. Well, I accept that. I know that now, in most of the Eastern Townships, they bus people in to the school in Cowansville and Lennoxville to do that.
Mr. Paterson: Yes.
Mr. Allmand: Well, I just thought I had better make that point.
Finally, with respect to your suggestion that we extend Section 133 of the British North America Act to Ontario and New Brunswick, I support you fully on that and I have said that before this Committee.
In response to the answer that we get from Ontario that they just cannot do it because they are short of personnel, short of judges, you are a practicing lawyer, what do you think about the proposal that for a certain period of time that we share, we pool judges and court personnel in order to meet local situations. Why could not the Attorney General of Ontario meet a demand for French speaking trials, let us say, in North Bay or Timmins or Cornwall, request the Bar of Quebec or the French of Quebec to loan judges. I cannot see where that would be that bad. We have Quebec judges going to the Supreme Court sitting on cases that come from Ontario. I think there are ways around this and I think they are not impractical.
Mr. Paterson: Well, Mr. Chairman, if I may answer that very briefly. I understand the situation in Ontario has moved from as recently as 1977-1978 when there was something like 7 bilingual Crown prosecutors to, I think Mr, McMurtry gave the statistics last week of 28, 29. The situation on bilingual judges obviously, whatever its improvement will follow.
I am not so sure that you could take a civilly trained judge and pop him into Ontario and have a satisfactory hearing. I think it would take some time. I am not saying that that is not a possible solution but I think it would take some time and some training to achieve it.
What I believe is that until Ontario, and it may require the rest of the country to give Ontario this push, until the push is given, Ontario is not going to take the last step, but with the push, I believe from everything I am told by the members of the Ontario Bar and we have met with the Ontario Bar and the Quebec Bar many times at the request of the Attorney Gener-
all of Ontario, that it is practically possible. I do not think the argument that it is impossible is an acceptable argument. They may have problems, but I think the Quebec Bar has already shown a great willingness to work out those problems with Ontario, but I think what it now requires is that a committee such as yours, to make the unanimous recommendation, carry that through.
I am convinced from everything I have been told by the members of the Ontario Bar and even the Attorney General that it can be achieved.
The Joint Chairman (Senator Hays): Thank you, Mr. Allmand. The honourable Mr. Fraser.
Mr. Fraser: Thank you very much, Mr. Chairman. I want to, I am sure, join with others here in welcoming, I think it is Miss Gotlieb, Mr. Paterson and Mr. McCall here to our deliberations.
I want to say to you as a British Columbia member of Parliament who has been here for some years now, since 1972, that we in British Columbia have watched your efforts with not only great interest and concern, but very considerable sympathy. We are frankly impressed with the work that you have done and the very generous spirit which you have brought to that work.
I also want to say, as I am sure you are aware, that things have changed remarkably in British Columbia over the last decade. I know that at the time I was elected in 1972 the thought of even providing, although there was some talk of providing classes for francophone children, the idea of having full scale schools to teach our English children to speak French competently so that they could take part in the Canada around them was novel. That is not novel anymore. We have both radio in the French language and we have television in the French language.
Keeping that in mind, I just wanted to observe for my friend Mr. Mackasey, that eight or ten years ago what we have today would not have seemed possible. Now, I do not want to wait eight or ten years for an amending formula Mr. Mackasey, but things do change.
I do want to, ask you some questions which lead from your brief which I find is very interesting. Now, I wonder if you could explain to us just what it is that Quebec thinks it is getting out of this resolution? We all know a great many people of good will from all parts of the country went into Quebec to assist you in your endeavours and the promise was made that there would be change, significant change, and change which would be beneficial to the aspirations of our fellow citizens in Quebec of whatever language. It seems to me that this proposition we have in front of us does make one change, it purports to entrench the right to language education in every part of the country, and as others have pointed out that is already something that all the premiers at St. Andrews several years ago agreed to, so that is not a contentious point of principle but it does not do much else, and in the amending formula, Section 42, given the fact that all the prerogatives for holding a referendum on a constitutional change lie with the federal government, and that even if you had all ten provincial governments coming to the federal government and asking for
that change as the provision reads in the document we have in front of us, that would not be possible unless the federal government agreed. In other words, the federal government can move to have a referendum with all the power and influence that that gives to the federal government, but the provinces cannot.
Now, that is seen, certainly in parts of the country, as a very worrying shift of federal power and we know that that is also seen in the province of Quebec by many people as a worrying thing. So I guess what I am asking you is after all the promises, except for perhaps mobility and for the entrenchment of language educational rights which had already been promised, what are the great advantages to Quebec now that we have had the referendum and the promises that are contained in this resolution? Does it go far enough to satisfy the aspirations of Quebecers who believed that there was going to be a new constitution in which their concerns, their aspirations and sometimes their fears were going to be better secured?
Mr. Peterson: Well, my answer to you very simply, is no, but what was promised in Quebec, the promise that I heard, was nothing more nor less than that the federation would be renewed. How it was going to be renewed, what was going to be in that renewal was not gone in to in great detail.
You will recall the Beige Paper was published sometime before the referendum but really did not form a part of the referendum debate, the details of the Beige Paper were not discussed.
So, clearly this proposition is not what Quebec is waiting for, but Quebec, in our submission, and we say this in our brief, will not get what it is waiting for until there is an amending formula because if we cannot amend except with unanimity, and it appears that unanimity is extremely difficult to achieve, then we are not going to get on to the renewal of the federation, which I agree with you goes further than entrenching an educational right and human rights. We are not going to get on with this until we have the amending formula so that it seems to us the key, the next step to get Quebec to the point where the promises were made is that amending formula. It is there that the unblocking must take place if the promise made to Quebec is to be realized.
Mr. Fraser: I have your point and it is made very clearly. I think the vast majority of Canadians in every part of the country, certainly at home in my own province, want patriation and they want an amending formula. Now, there is a difference of opinion as to what that amending formula ought to be and one of the concerns is that it is lopsided in favour of the federal government at the moment. But you have also suggested that the language rights which are presently in our constitution, in the British North America Act under Section 133, ought to be extended to other provinces and you mention specifically Ontario and New Brunswick.
Now, let us assume that this Committee did recommend that. At what point could you consider that it was appropriate that those rights would be extended to other provinces, and let me ask you also, because you mentioned more than just
language rights in the courts and in the legislatures, you also mentioned the right which I think you felt should be entrenched to receive certain social services in the minority language in the event that was the language necessary to reach the minorities.
Now, can you tell us what you are thinking about in terms of what we should be looking to in terms of what is appropriate to extend those rights beyond your suggestion? I say this not in a perjorative way but, for instance, I do not know whether it was Mr. McCall or Mr. Paterson said, when speaking of bilingualism in the courts, and I think you said it is inconceivable that an accused cannot be tried in their own language. Now, I think it is inconceivable where you have a significant minority and where you can provide the services, but it is much more difficult in some other parts of the country.
Presently, under the Criminal Code, amendments went through several years ago which established the federal authority with the power to declare this in different provinces and we have not been able to do it yet in British Columbia because of a real problem in having sufficient people who can speak French competently, and I am not talking about those who like myself who have struggled away to learn it on a functional basis, but to speak competently enough to serve a litigant within the courts, so I would be interested in your views?
Mr. Paterson: I will just answer the very narrow question of criminel trials and Mr. McCall will go on after that.
My statistics are not up-to-date, I think they come from the 1976 statistics, but there is some 38,000 French speaking people in British Columbia in 1976; is that about right? Forty.
Mr. Fraser: Just on that point, the figures vary but the difficulty is that they are not in one place.
Mr. Paterson: I appreciate that, but it seems to me, and I have to bow to your much more familiar knowledge of British Columbia, but it seems to me that if you have in the order of 40,000 people, albeit scattered to a degree, you can not have a court outside the house of the man that is faced with a criminal trial, but it is hard to believe that you can not bring a man to a court in British Columbia, be it Vancouver, Victoria or elswhere, and provide for a criminal trial in that centre.
Mr. Allmand’s suggestion, which raises complications in civil trials, in non-criminal trials in Quebec and Ontario because of the different legal systems, does not apply in criminal cases and I can not see why, if it was a problem for British Columbia alone, why even there could not be a joint pool of judges that were bilingual and prosecutors that were bilingual in the two or three or four Western provinces. However, I do not think, really, the practicalities of that can be so serious and the cost can be so serious that it can not be achieved when you look at the numbers of people in Saskatchewan, Alberta and British Columbia who are French speaking. Maybe there is going to be a problem in the yukon and the Northwest Territories, Newfoundland, but it is hard to see a problem in those provinces because the numbers that exist you would imagine could produce sufficient bilingual judges and
crown prosecutors to achieve that result, at least in one centre of the province.
Mr. McCall: We recommend that the right to speak both French and English in the Legislature be extended throughout Canada, that this is not just a bit of empty symbolism but an important right if you are a Canadian to be able to speak either of the two official languages in any Legislature in Canada.
Now, about Section 133, perhaps we could have some provision that when the proportion of francophones in a province reaches a certain level, that automatically Section 133 would be extended to that province. I do not know what that level is, perhaps you have some suggestions as to what it might be. At the moment we are only recommending it be extended to Ontario and New Brunswick but one could easily see in the future that we could also recommend when the number of francophones reaches a certain level that it be extended to other provinces and I hope we will recommend that. However, what the level is, we do not have any idea at the moment.
The Joint Chairman (Senator Hays): This will be your last question, Mr. Fraser.
Mr. Fraser: Yes, thank you, Mr. Chairman.
Some years ago consideration was being given to the amendments in the Criminal Code. There were suggestions made that in order to get around the difficulty of not enough francophones in British Columbia who could speak French well enough to be judges, and remember we have to go beyond the provincial court level to the Supreme Court, Court of Appeal, that this could be done by agreement between the provinces to have a travelling court during the interim years while sufficient numbers of capably French speaking lawyers and court officials developed in the province of British Columbia, and I was very interested to see that my colleague, Warren Allmand, suggested that, but just one last question.
The question of Section 42 is important and I am glad to see that you have reservations on it, but you have said that if we can not come to some better agreement, then we should accept it anyway but I want to ask you about one other provision in this resolution which you may not have noticed, and that is Section 44, and that section says that if an amendment comes through Section 41, that is the non-referendum amendment, and the Senate tries to hold it up, then it can be brought back to the House of Commons and become law whether the Senate approves it or not. I am wondering in view of the fact that you are very sensitive to your own feelings in the province of Quebec, whether you think that that is a provision which is likely to meet with approval in the province of Quebec because what it does, of course, is remove the Senate’s function as the guardian of provincial and regional rights, and I am wondering if you had noticed that and whether you have any comment to give us.
Mr. Paterson: I think I can only tell you that that has not been the subject of a great deal of debate to date in Quebec, either in the press or elsewhere that I have seen. We did not address ourselves to Section 44.
Mr. Fraser: Thank you very much. I want to thank you all for being here.
The Joint Chairman (Senator Hays): Mr. Paterson and Mr. McCall, we appreciate your being here and honouring the Committee with your presence. I now call it after six and at 8:00 we will have the Canadian Jewish Congress here. Until then this meeting stands adjourned.
The Joint Chairman (Mr. Joyal): Order, please.
Would the press representative along with the recording sound and picture equipment please leave the room so that we can proceed with our work.
It is my pleasure to welcome tonight the representatives of the Canadian Jewish Congress; their distinguished representative Mr. Max Cohen, the President; Professor Martin Friedland; Professor Joseph Magnet and Professor Irwin Cotler.
I understand that Professor Cotler will make the opening remarks, followed by his colleagues, and then we can enter into a debate around this table.
Professor Irwin Cotler (Canadian Jewish Congress): Thank you, Mr. Chairman. On behalf of the Canadian Jewish Congress and our committee on the constitution I would like to first express our appreciation in being able to appear in what we regard as one of the most historic deliberations in the constitutional history of this country.
As the Chairman mentioned, my name is Irwin Cotler. I am Professor of Law at McGill University and national president of the Canadian Jewish Congress. The Congress, as some of you may know, is a national representative body of Canadian Jewry, sometimes referred to as the Parliament of Canada’s 300,000 Jews. The organization has had a long, and I trust not undistinguished, involvement in the field of human rights, while the Jewish community itself, numbering amongst it a significant number of survivors of the holocaust, has had its own historical experience as victims of human rights violations in that regard.
It is that particular experience as victims and perhaps more importantly today our hopes and responsibilities as Canadians that inspire these remarks.
With me are Professor Maxwell Cohen, the former Dean of Law, now Professor Emeritus, Faculty of Law, McGill University, the Chairman of our Committee on the Constitution and one of the most distinguished jurists in Canada; Maître Frank Schlesinger, Chairman of the Quebec region of the Canadian Jewish Congress and a member of the constitutional committee and Professor Joseph Magnet of the Faculty of Law, University of Ottawa and a special advisor to our committee.
I would like, Mr. Chairman, to make a brief introductory statement and then turn the proceedings over to Professor Cohen.
Any inquiry into the constitutional process in Canada since 1867 and even into much of contemporary constitutional discourse proceedings and deliberations of this Committee would expose a continuing preoccupation with the powers of government at the expense of the rights of people. More particularly, traditional. constitutional analysis and reform has revolved around the division of powers between federal and provincial governments as distincs from concern with limitations on the exercise of power regardless of government.
The result is that the powers of government have preceded and otherwise obscured the rights of people, when it is the rights of people that should precede the powers of government.
Accordingly we welcome an entrenched charter of human rights both as a symbolic and substantive affirmation of our rights as well as an appropriate remedy to secure them.
It is true that as Judge Learned Hand once put it, liberty lies in the hearts of men, when it dies there, no law, no court and no constitution can save it.
This does not mean that we should not entrench fundamental rights especially because they may be affairs of the heart. Indeed, entrenchment may not only protect the rights we proudly proclaim, but it will reaffirm rights we have quietly and at times inadvertently silenced.
At the same time, Mr. Chairman, we would be less than candid if we did not acknowledge our misgivings regarding certain disquieting features and provisions of the charter, features which, if left unaltered by this Committee, might prejudice the very rights the charter is designed to secure.
In a word, Mr. Chairman, after 113 years a charter should be a bold, unequivocable, indeed heroic statement of human rights and of the means to secure them. Yet some of the language and limitations in the charter and the absence of certain other rights and remedies may undermine that otherwise laudatory objective.
I will now ask Professor Cohen to more fully elaborate on this introductory statement and the specifics in our brief.
Professor Max Cohen (Chairman, Select Committee on the Constitution of Canada of the Canadian Jewish Congress): Mr. Chairman, honourable Senators, Members of the House of Commons, ladies and gentlemen, perhaps a moment or two on our procedures; I have a few introductory remarks of my own; I would then turn to the document you all have and use that as a basic guideline for our discussion. The document speaks for itself, I will not pretend to read it, I will speak to it on the assumption that explanatory note as I go along will then invite questions.
I would like to be guided by you, Mr. Chairman, as to whether or not you would like me to stop at the end of each point. We are examining every article of Charter except for one or two that seem to us not to require detailed examination and I would be guided by you and your colleagues as to how you want us to proceed, whether to stop there and debate with you, or to go on, as the case may be. Perhaps you might let me know in a moment which procedure to follow, when you have given it some thought.
Let me just make one or two general comments following the remarks of my colleague, Professor Cotler.
I do believe that a charter of rights of this historic proportions and dimensions should sound a trumpet, should be a Jericho, and by that I mean not some rather well worn cliché but we are stating a national system of values for a long time to come.
It should not be a simple detailed catechism of behavior; it ought to be something much more than that. It is not merely a question of language, it is a question of spirit; and unless one catches that spirit in a great charter of rights that changes the nature, in a way, of the political regime of the country as a whole one misses a grand opportunity.
I go farther and I say that given the reality of Canadian disunity at this time, one of the great triumphs of a well drafted, well understood, well rooted charter is the unifying effect it can have on the whole country as a statement of commonly shared values. Unless we see it in that light I think we miss a great opportunity before us.
Let me say what we are not doing tonight in this particular presentation by us. We are not examining the amending formula or the patriation problems. We confined ourselves very strictly to the 29 articles of the Charter itself. It seemed to us that that was a big enough task without getting into the very difficult and, to us, we thought for the moment, really extraneous issues that do not go to the heart of the merits of the Charter per se, save perhaps for one aspect of the amendment problem, but even there I would rather not be found having to discuss it without much more preparation than we have done.
Strictly speaking, then, we are concerned with the 29 articles of the Charter. Strictly speaking we would like to be held responsible for whatever we say in that particular area.
I must apologize for the absence of a French language document now. It is being translated. Ideally they should have come together. We apologize for the failure to present them jointly. The reason was quite simple, we were given very short notice as to when we might have to be here and only by the good luck of having worked since August on our own homework did we really get far enough to have a document in the hands of this Committee last Thursday, almost a week ago, which probably is meeting the dealine as well as any other organization you have had so far. So although we wished to have had the French version it was impossible to have it done. It will be here very shortly.
Finally, I would like to just say a word about this room because it brings back, as it will to Senator Goldenberg and perhaps Senator Lamontagne very important memories of February 1968. This was the room in which Mr. Pearson opened the first of the great meetings on the Constitutional Conferences. I had the luck to be here, I was advising at the time the government of New Brunswick. I learned something about the small province point of view through that exercise. The room itself therefore is reasonant with the memories of efforts gone by, efforts which I hope are now continuing and may in the near future find a serious and permanent fulfillment for the good of Canada.
Let me turn then from nostalgia to the immediate problems before us. If I may, I would like to ask you to take a quick look at the letter which accompanies our brief. I will not read it, but I will just make one or two on the comments of the letter. There, we point out that membership of this Committee is varied politically and varied in all regions of Canada. To the extent that we have any party affiliations, they are here in all parties; to the extent that they are the main regions of Canada, all the regions of Canada are represented on this Committee.
Mr. Chairman, I will not speak as to the level of competence or scholarship, because those matters would have to speak for themselves. I would guess that it is as good as we can find around at short notice in most parts of this country.
On page 2 at the top, the letter makes reference to why we think the time is ripe for a charter of rights. We have four main points which we have set out in that summary. We think that the time is ripe for a nationally recognized system of language and educational rights; we think the time is ripe for the national entrenchment of a system which would prevent discrimination or inequality wherever it is practised.
We think that there is a large measure of unclarified or not yet articulated rights which deserve the greater clarification, greater articulation and the time is ripe to put them in charter form.
Finally-and perhaps most important-we are living in a generation when the activist interventionist state of our times is on everyone’s backs.
The late Mr. Justice Douglas before he died-and his autobiography has just been published-was asked once what the American Bill of Rights was all about, He said it had only one objective; to get the government off the backs of the people. Well, I will not attempt to be as simplistic as that.
But in a time when the inroads of government into the private lives of all are so heavy, the role of a bill of rights seems to be one that offers at least some countervailing influences and a mechanism of great importance.
The rest of page 2 deals with a concept that rights stated properly become shared values, and conversely, shared values can be put in terms of rights, and, therefore, a bill of rights seems to express that sense of unity and sense of commonly shared values which no other instrument possibly can do.
The other point made on page 2 is that we have certain international obligations. In 1976 we became signatories to the United Nations International Covenant on Civil and Political Rights; we have a legal obligation to make our domestic law conform to international obligations. To that extent a bill of rights is an obligation on the part of the government of Canada to make its own domestic law, federal and provincial, conform wherever possible to international obligations.
There are, however, one or two matters of a particularly Jewish nature which may be of interest to you. This Committee did not have a parochial view; this Committee does not pretend that the human rights question belongs to any sector of the Canadian people. It belongs to them all.
But, peculiarly enough, there are two or three areas where the Jewish interest happens to be special, and in some cases very sensitive. One is the problem of war criminals, and how that relates to certain protections offered by a charter of rights in the criminal law field. Another is the problem of free speech, and how far that affects such things as hate propaganda; a third is the whole area of affirmative action programmes and how that relates to quotas and equality of opportunity which the Jewish community has been very sensitive about for a very long time.
Finally, on page 3 of the letter, you will notice that there are two paragraphs dealing with three new areas. One is that we feel that the charter is deficient in having no systematic approach to the enforcement of rights, other than the accident of rights coming up through civil or criminal actions in the courts: no systematic approach to enforcement per se.
Then we feel that the approach of the charter to the problem of national emergencies is rather antique, rather antiquated and needs an updated post war measures kind of thinking which the charter does not seem to embrace, and we have tried to give it that kind of perhaps updated view consistent with the general spirit of the charter.
For these reasons, the Canadian Jewish Congress in this Committee strongly supports the theory of entrenched charters for the future constitutional life of Canada.
Now, if there are no questions dealing with the general thrust of the document as expressed in the covering letter, Mr. Chairman, then I shall turn to Article 1 of the Charter. I believe I had better stop here for a moment.
Mr. Fraser: Mr. Chairman, my good friend, Professor Cohen, said if there are no questions relating to the general thrust, and then he moved on: skillful counsel, Professor Cohen.
The Joint Chairman (Senator Hays): You are the first one on, Mr. Fraser, providing that Professor Cohen has completed.
Mr. Fraser: My concern, Mr. Chairman, was if our guests wanted to stop at this point and take questions now.
Professor Cohen: May I make a suggestion, Mr. Chairman? I thought the nature of the letter was really introductory. I rather think the substantive importance of anything we have to say comes now in the brief itself.
The Joint Chairman (Senator Hays): Well, you can handle it any way you wish, Professor Cohen. If you wish to carry on, that is just fine.
Professor Cohen: I am really in the hands of the Committee. The Joint Chairman (Senator Hays): I think we would like you to continue.
Mr. Fraser: Well, for my part, Mr. Chairman, and I understand I am the first person to start questioning, I would prefer if our guests completed their presentation, and then we could elicit from them their wisdom and views.
Mr. Mackasey: We might never get by the first intervention. It is a long document. We would like to get the wisdom on all points.
The Joint Chairman (Senator Hays): I read Mr. Mackasey’s remarks to mean, “Shut up now; let me talk”.
Professor Cohen: Let me then proceed with Section 1, Mr. Chairman.
Section 1 of the Charter is a very strange article. You have had a lot of comment on it. I do not wish to burden you with repetition. We made two points about it, looking at the first page of our brief, We say that Section I tends to guarantee charter rights, and freedoms, and at the same time provides justification for the suspension of charter rights during an emergency.
I have a feeling that the draftsmen, when they drafted Section 1, were torn between two conflicting pressures on them intellectually and practically. The pressures were, how to maintain the theory of parliamentary supremacy when introducing a theory of a charter regime. It was an attempt to find some kind of practical, legal, political equilibrium between a charter regime system, on the one side, and a parliamentary supremacy regime on the other, that Section I represents.
But then, when you look at it, it is so great an invitation in language such as, “subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”, that any agressively minded lawyer with an aggressively minded government could ride through that series of gates with very little difficulty and find the charter heavily wrecked en route.
We feel that is not the way to begin a regime of a charter; it is not the way to start a new system of rights. We solemnly recommend the total elimination of Section 1, because when you go into Section 2 and the rest of the charter you are very specific there. You do not need Section 1.
To the extent that you need emergency powers, you will have them. We recommend that in a new article, Article 28(a) at the end of the brief. To the extent that you want to have an equilibrium between a charter regime and parliamentary supremacy, you must accept the fact that, once you introduce a charter regime, parliamentary supremacy is modified for ever to that extent. That is a plain legal and political fact, and you cannot have the best of both worlds, except in an emergency and we provide for an emergency.
Perhaps it might be wise, Mr. Chairman, if I were to stop there for a moment, because it is too important a question to slide by without at least recognizing the importance and the severity of the decision.
The Joint Chairman (Senator Hays): Mr. Fraser.
Mr. Fraser: First of all, Mr. Chairman, I think I should say on behalf certainly of everybody here to Professor Cohen, Professor Cotler, Professor Friedland and Professor Magnet, how very pleased we are to have your thoughts tonight. We all are going to benefit a great deal from your views.
But we do have some questions.
It seems to me, Professor Cohen, that you are starting right off-and Professor Cotler, the same-by indicating to us . . .
An hon. Member: I thought we were going to hear the whole presentation, otherwise the questioning will become chaotic as to whose turn it is.
Professor Cohen: I will be guided by any form. I think the decision made a moment ago that we go through and pick out the one that you want to may be the quickest way, otherwise we may find ourselves bogged down on a particular subject. Really, I would rather not state my preference, and I would rather you, Mr. Chairman, decide for me.
The Joint Chairman (Senator Hays): Well, it is the wish of the Committee that Professor Cohen go through his brief.
The Joint Chairman (Mr. Joyal): Approved.
The Joint Chairman (Senator Hays): Go ahead, Professor Cohen.
Professor Cohen: So much for the very important part of the elimination of Article 1. Section 2 then begins the real ball game, namely everyone has the following fundamental freedom. The one difficulty we had, as a committee, is with Section 2(b). What do we do with freedom of thought when you have got legislation dealing with have propaganda? How far is it possible to retain such articles as Section 281(1) of the Criminal Code and Section 281(2)? Moreover, you will see we have quoted from Article 20 of the United National Covenant of Civil and Political Rights where propaganda of this kind is regarded as inconsistent with freedom of speech.
So we raised the question which seemed to me to be necessary to raise with you, that caution must be exercised, we hope, by the courts in due course, or by you, as draftsmen on how far you are prepared to push the concept of free speech consistent with our experience of hate propaganda.
One suggestion we make here-and I do not wish to do anything more than to drop it as a hint, but you may want to have some language that some of the modern constitutions have, which state very starkly and flatly that the advocacy of genocide or group libel is forbidden. But I had the honour to be the chairman of the special committee on hate propaganda in 1965. At that time we came to the flat conclusion that the advocacy of group hatred and genocide was totally inconsistent with the democratic process and no democratic state could tolerate it.
Now, whether you want to put that flatly in a constitution is for you to consider; but I think it is for us to bring it to your attention, because it is of importance.
Now, in Section 3, it is stated that:
3. Every citizen of Canada has, without unreasonable distinction or limitation, the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
We like that, but we think there is something missing there. What is missing is that the Section does not include the right to take office. It talks about being qualified, but it does not talk about the right to take office; you might have all the qualifications and have the right to vote. So you had better amend that to make it perfectly clear that if you have all those qualifications, then you equally have the right to take office, which is not there now.
Section 4 has that very important classical Canadian phrase with which we are so familiar in the War Measures Act— “real or apprehended”, “in time of real or apprehended war, invasion or insurrection,”. Well, “real or apprehended” can now leave the Canadian scene. It makes no particular contribution to the understanding of the art of government or the nature of the emergency process. We think the emergency theory set out in Section 28(a) does not require the “real or apprehended” doctrine and we suggest its total elimination from the language of any Canadian legislation or any Canadian charter.
And now, Section 6 is a very important area of mobility rights. Here, we are concerned that the section begins, “Every citizen”. We are not sure if you really want to confine that mobility right only to citizens. What about permanent residents? What about landed immigrants? What about refugees?—a whole category of people legally in Canada, one way or another! They ought to have total mobility rights, We ought not to have two, three, or four categories of mobile citizens in Canada.
And Section 2(b) is very important.
(to pursue the gaining of a livelihood in any province).
That raises a large number of issues. My colleague, professor Cotler, will discuss them when we come to Section 15 on non-discrimination questions because the discrimination, province by province, against certain non-provincial residents or citizens for certain types of jobs have raised certain difficulties already in Canada.
You may be interested to know how strange it is that we, as a united country of 113 years’ experience of a great federal union, have less mobility than the recently born European Common Market. The Common Market has already worked out a system of total mobility for doctors and nurses, and the idea of Italian barristers in the Inns-of-Court frightens me. The very image of it as a picture; but there it is. The same is true of Italian nurses and of British nurses somewhere in south Germany; and the mobility now is to the point where it is supposed to be total. They are working on engineers, architects and others and I am told by students of the common market here that in due course, under the Treaty of Rome they expect to have total mobility in all professions. Well, we are nowhere near that after 113 years!
You try to become a member of the Law Society of Upper Canada when you come from a civilized place like Manitoba, without having the right amount of money, the right amount of qualifications and the right amount of internship period, etc. etc. I am not saying this in anything but a semi-facetious way; let me say I am semi-serious and semi-facetious.
I am concerned about language, though, in a charter in which one does not get the total sense of mobility because it is in fact an already existing body of strict regulations governing that mobility and which the charter may not wholly and effectively deal with.
In the same Section 6, we feel the words “permanent resident” has now become a term of art and should be regarded as such, and, therefore, they should have the full protection as well the citizens of Section 6(1).
Finally, because we are signatories to the Convention on Refugees of 1951, we feel that refugees also should have certain rights of mobility which this particular section of the charter would not give to them once they are admitted refugees in the classical definition of that term as defined in the Convention of 1951 itself.
Section 7: That raises some classical problems which will be familiar to all of you. Notice what it says:
7. Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.
That is one of the great concepts of the Franco-American, Anglo-American legal doctrine and system.
What is troubling there for some people, is the word “everyone”. Does that embrace people who are in Canada illegally? We think it should include everyone, so that we do not have people here who may be here legally and deprived and are deprivable of these basic rights.
Why was the phrase “fundamental justice” used, instead of the classical phrase “due process of law”? Well, there is a long story attached to it and I would not go into that except to note procedurally what happened to due process of law in the American system, and you will find that in the Diefenbaker Bill of Rights.
If you go back a long enough way you can trace a whole systematic approach to what began as a simple phrase, I think in the Magna Carta, the Law of the Land, up through ideas of natural law, up through the idea of fundamental law, then due process of law, now fundamental justice which is a high bred term and which the Diefenbaker Bill of Rights used quite successfully in its own limited way and I see it has been taken into here.
Whether or not it is better to use it than the classical due processes of law, I am by nature a reactionary and I therefore would prefer-well, I am a radical reactionary let us say-and I would prefer a nice old tcrm that lawyers know for a couple of hundred years such as due process of law. But if the draftsmen believe they are better off with fundamental justice, we will not cavil about it.
Section 8. Now we are into a number of rather difficult, technical areas.
Everyone has the right not to be subjected to search or seizure except on grounds, and in accordance with procedures, established by law.
Now, you must have heard the criticism in the last several days about that. It means, really, that all you have to do is pass a law, no matter how severe, and, therefore, it meets the requirement. Clearly, that is not what was intended by the draftsmen. What they really meant was what we think you meant by our amendment on page five of our brief, and it should read something like this: Everyone has the right not to be subjected to arbitrary or unreasonable search or seizure. That is what you meant. Therefore courts thereafter can be guided by and legislatures would have to be guided by, not to be unreasonable in what they state, otherwise, you have no standard. Simply established by law is no standard whatever. It can be the most arbitrary law, the most vicious law and it still will be binding in this particular context.
Same thing in Section 9.
9. Everyone has the right not to be detained or imprisoned except on grounds, and in accordance with the procedures, established by law.
Again, it simply is not good enough. It can be very arbitrary and so we suggest everyone has a right not to be arbitrary or unreasonably detained or imprisoned; a much more flexible, a
much more realistic approach the way in which legislature ought to behave and the way in which the judges will make them behave by having this kind of standard.
10. Everyone has the right on arrest or detention.
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Now, a number of problems here: in the first place, we think that in accordance with the international convention there should be a right to legal aid because, as matters now stand, that language will very easily succumb to the theory-well, of course, you are entitled to counsel, but if you cannot afford counsel, then so what, what is your recourse to it. It ought to be clear that now that Canadian society has almost established a rule from coast to coast in the assistance of legal aid in which no one is deprived of their due defence through the absence of counsel, somewhere that is worth stating in a charter of rights so fundamental as this. So, a legal aid system of some kind or the right to legal assistance of some kind is worthy of charter mention.
The next problem of course is to retain and instruct counsel without delay. Now, very important questions arise here. What if you do not have it? You all know of course the famous U.S./Supreme Court Judgement in the Moranda Case. In Moranda the Supreme Court and a whole series of cases thereafter made it clear that the failure to inform accused of his rights will poison the proceedings thereafter, The question is, what do we say about that kind of problem in a Canadian charter. We do not go that far. We do not say that the failure to inform will amount to an absolute exclusionary rule that you cannot have evidence therefore which can be adduced because you have not given the man a fair warning as you should have done. We think this should be left to the judge in a case by case process.
Now, we may not have gone far enough. I think Gordon Fairweather went farther than what we did on this matter. We had some pretty good criminal lawyers on the committee. Let me put it to you in broad, practical-philosophical terms. One should see articles of this kind and others like it. In terms of the modern problems of the administration of criminal justice, how do you draw a balance between the police and the prosecutor in a world in which urban crime is rampant. How do you tilt the balance one way or the other to meet the exigencies of the situation.
Well, the tilting process cannot be done every day by the legislature. Perhaps you ought to give discretion to the courts to work out the tilting process over time as they see the urgencies of the occasion day by day, case by case around them.
We thought that by not making a Moranda Rule, a fixed constitutional notion, you would give the courts a sense of the
scope of which they can tilt as the exigencies of the criminal justice system might require at a given time.
Finally on that particular Article 10, the access to counsel. It is not so clear in the English version as it is the French version, that there is a right to counsel, that, you have the right to make the telephone call and that this is something you should be told about; whereas, the French version seems to us to be a little clearer and we recommend that the spirit of the French version be afforded to the English version in the notion of access too, which is clearer in the French than it is in the English.
Section 11 has a number of very difficult and important questions. Am I going too fast, Mr. Chairman, or are you happy with what you hear?
The Joint Chairman (Senator Hays): No, that is fine.
Professor Cohen: Please notice the large number of classical administration of criminal justice issues that are listed in Section 11:
Anyone charged with an offence has the right
(a) to be informed promptly of the specific offence;
No problem there.
(b) to be tried within a reasonable time;
(c) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(d) not to be denied reasonable bail except on grounds, and in accordance with procedures established by law;
Now, with respect to (c) there is a development in Canada in which in certain types of offences the onus shifts once the Crown makes a prima facie case. That was developed very much in Regina versus Sault Ste. Marie. Do you want to speak to that, Mr. Magnet.
Professor Joseph Magnet (Canadian Jewish Congress): The point here simply is that a defense of due diligence is not recognized by the Supreme Court of Canada with respect to public regulatory offences which are not true crimes. These would occur mostly at the provincial level and the Supreme Court of Canada now recognizes in Regina and Sault Ste. Marie and Regina and Chapin and in various cases in the provincial courts of appeal, that the onus of proving the defence of due diligence is on the accused, after the Crown has made a prima facie case.
Well, we have considered whether the presumption of innocence might disturb the developments, the quite laudable developments of the Supreme Court of Canada in this area and we think on balance that there is no danger that the presumption of innocence will disturb them.
Professor Cohen: We should leave it alone as indicated.
Now we come to a couple of very more difficult questions in 11 and I will go quickly through them.
One, should the doctrine of tainted evidence be introduced in the Constitution of Canada; in other words, evidence illegally acquired, should that affect the correctness of the trial. The Supreme Court of Canada held no, evidence illegally acquired is still evidence and we do not recommend any change there, even though the Law Reform Commission has taken a look at this, because we think we can leave it to the courts to decide whether the means of obtaining it was so horrendous as to be totally excluded or not, There will be degrees here and I would rather leave it to the degrees to the court rather than to try and formulate a doctrine per se in the constitution itself.
The other question of some difficulty here is a modern question of entrapment. All of you who looked at the Abscam prosecution TV pictures will wonder what is a Canadian approach to the entrapment doctrine, I am instructed by people who know more about the subject than I do that the Supreme Court of Canada in 1977 in the Kuzner case left the door open as to how far entrapment would be permitted, but in general, it is regarded in part as a legitimate type of police activity, providing it does not really shock the conscience of the jury or the judge by the very nature of the entrapment process.
Again, we are suggesting that we do not try to write in to the constitution a barrier against entrapment per se.
We now come to this question of bail. The language you have here we think could be improved. 11(d), by reading not to be arbitrarily or unreasonably denied bail, It seems to me that is the real issue, that bail should not be unreasonably or arbitrarily denied.
We now come to how far the double jeopardy rule, no one can be tried twice for the same offence, will protect war criminals in Canada. Here we have a very serious Canadian, as well as international problem. There are allegations, as you know, that are anywhere from 35 to 200 war criminals, if they could be tried properly, running around this country. The debate has been going on for a number of years. I am not competent to judge the accuracy of those figures, but clearly, there are enough people of competence in this country who believe it is a serious problem to make us wonder how we should handle it.
We feel that it is worthwhile looking at how the United Nations Covenant on civil and political rights handled the matter. If you see the language we borrowed from the Covenant on page 8, you will see we took Article 15(2) from the UN Civil and Political Rights Covenant. I think we should incorporate that somewhere into a Canadian charter, so that even though time will eventually destroy the immediacy of the problem of Nazi war criminals, it at least it is there as a symbolic gesture to a very dark past and that no one should be allowed to run free so long as there is a possibility that we have a war criminal who can be identified as such.
So that the doctrine of double jeopardy will not become a defense to anyone who otherwise can be identified in due course as a war criminal.
There is another aspect to this on the top of page 9 which is the extent to which the word offense itself raises difficulties. We think that the double jeopardy rule in the word offense gives rise to some problems and we think the Committee recommends the word offense in 11(f) be replaced by the words acts giving rise to the offense. Because what you can have is, you can have a man tried two or three times for different offenses, even though they are the same set of facts. What we are saying there is, therefore, once you identify a set of facts, no matter how ingenious you may be able to formulate different offenses against him, you ought not to try that man twice on the same set of facts.
Section 13, here we have the great Canadian U.S. debate as to whether or not this country should have a fifth amendment, To take the fifth is part of the Kojak tradition of which we are all students of. Without television we would not understand American criminal law very well.
As you know, in Canada today, the position is an accused can not be compelled to testify against himself and, secondly, that if he is a witness in any proceeding, he is compellable as a witness, but that evidence under Section 5 of the Canada Evidence Act can not be used against him if he asks for the protection. This would compel a court to give the protection to him, he does not have to ask for it. Half the time, three-quarters of the time they do not know it exists and the famous Gouzenko trial of 1947,’48 was entirely built upon people prosecuted who did not know they had the benefit of Section 5 of the Canada Evidence Act. So, we are suggesting it be made a compulsory matter to be told for anyone who is giving evidence as a compellable witness.
Section 14, we have nothing to say about.
Section 15 on discrimination, I turn that over to my colleague, Professor Cotler.
Professor Cotler: Thank you, Professor Cohen. I would like to elaborate somewhat on Section 15, subsections I and 2 because I think our comment here just sounds somewhat of a cautionary note re Section 15, subsection 2, which may perhaps not entirely reflect the thinking of the Committee which is as follows. With regard to Section 15(1), of which there is no comment here in the brief itself, our Committee recommends that Section l5 express a general proscription of discrimination and protection of equality before the law with no grounds listed. In the alternative, if prohibitive grounds are to be included, we believe that the prohibited grounds of discrimination in Section 15(1) are incomplete. In particular, we believe that the rights of the disabled require entrenchment in the constitution and, more recently, the Canadian Jewish Congress submitted a brief to the Parliamentary Committee on the disabled where this particular recommendation was made, and we reaffirm it here today.
As well, we believe that the list of prohibited categories, if they are to be identified, should be expressed by way of the
ejus generis principle so as not to unduly freeze the proscriptions only to those that are listed herein.
Finally, we believe that the charter should contain an express reference to the rights of women. We suggest adding here an unequivocable principle that this charter guarantees the equal right of men and women to the enjoyment and protection of the rights and freedoms set forth in this Charter. That is to Section 15, Subsection 1, Mr. Chairman.
I will now speak to Section 15, Subsection 2. I would like to state that the Committee supports the principle of affirmative action as set forth here in the charter and as earlier set forth in Section l5 of the Canadian Human Rights Act. These components of affirmative action can be discerned in fact from the affirmative action programme with respect to francophones and the public service which itself was a consequence of the B and B report.
Our only reservation therefore is with respect to the question of the incorporation or application of quotas in that regard. If I may, I would just like to excerpt from a brief that I had occasion to participate in on behalf of the Canadian Civil Liberties Association in the consideration of Section 15 of the Canadian Human Rights Act at the time, wherein, we stated that in view of the contraversies elsewhere. . . we were referring then to the situation in the United States . . . it would be prudent to note that our recommendations here need not entail any suggestion of reverse discrimination or benign quotas …and here is the key phrase, we are not necessarlly asking that qualified whites be rejected, for example, in favour of unqualified non-whites. What we are asking is that more non-whites be encouraged and assisted to qualify and compete.
In conclusion then, Mr. Chairman, as to the matter of affirmative action, it has indeed been with us for some time, although, this is somewhat belied by the fact that there has been little debate or contraversy in Canada about a principle that has already found expression in both federal and provincial legislation and specifically more recently in Section 15 of the Canadian Human Rights Act.
The roots of affirmative action can be traced as I mentioned at least to the B and B Report and to programmes for francophones in the public service which were in place in the government long before passage of the Human Rights Act and to the more recent affirmative action programmes with respect to both native peoples and women.
Many Canadian universities have themselves developed special admission programmes for native students with resulting increases in the rates of native enrolments.
In certain ways then, Section 15 of the Human Rights Act simply legalized practice and philosophy that was already well entrenched in Canada before it and I suggest that Section 15, Subsection 2 of the charter affirms that principle and we associate ourselves with that principle with the caveat as expressed therein with regard to the matter of quotas.
Moving on through Section 16 through Section 22, I would just like to make the following comments that do not appear in the brief and I am addressing myself specifically here to those matters which would find expression by way of amendments to Section 21 of the Charter. We would recommend the following three inclusions:
Number one, that every person has the right to use English and French in any of the debates or proceedings of the legislatures of any province. This indeed was a recommendation made to you earlier today by the Positive Action Committee. It has been made by the Canadian Bar Association Committee in the study to the new constitution and it was contained in the initial federal constitution proposals to the provinces of August 22, 1980.
The absence of such a right, Mr. Chairman, would effectively, we believe, prejudice the rights of official language minorities in one of the most important public for a in this country, the Parliaments of the various legislatures.
Recommendation number two: we believe that Section 133 of the BNA Act and its equivalent section, 23 of the Manitoba Act should be extended to New Brunswick and Ontario.
Section 133, which the courts in both Blakey and Foret, Supreme Court in both the Quebec decision and Blakey in the Manitoba decision in Foret, rightly called a fundamental rule of law principle enshrines French and English as the official languages of the courts and legislatures of Quebec and Manitoba.
We believe that this should be extended to Ontario and New Brunswick as was initially recommended in Bill C-60, again in the Canadian Bar Association Report, and earlier today in the Positive Action Committee Report and the federal proposals of August 22.
It does not appear to us to be sufficient, though we are encouraged by the fact that New Brunswick has rights of this kind in its own Provincial Human Rights Charter and has been responsive to the suggestion that it be included in this charter as well, or that Ontario is moving and we are encouraged by those developments in that regard.
We believe, Mr. Chairman, we understand from the testimony that was given by the Justice Minister before this Committee, that the government may have found itself somewhat in a kind of “Catch 22” position, that if it moves too much, that in fact it may be accused of moving too quickly, and if it does not move far enough, then it will be accused of in fact not giving expression to its own stated principles. However, we believe that this Committee can and should go on record with respect to the incorporation of a fundamental principle of the rule of law with respect to the extension of Section 133 to New Brunswick and Ontario in the hope as well that that may subsequently be adopted by other provinces in this country.
If I am not mistaken, at the time of the Victoria Charter in 1971 some seven provinces at that time were prepared to do
that so I do not think one can await the vagaries in that sense of particular governments at particular moments in time, and the Committee might be able to take that initiative, at least with regard to entrenchment re Ontario and New Brunswick.
Finally, Mr. Chairman, we believe that a person charged with a criminal offence has a right to be tried in English or French if that is his ordinary language, and every native person to be tried in his mother tongue As the late professor Herbert Packer once put it: The criminal sanction is uniquely coercive and uniquely hazardous. In that regard we believe this right should be entrenched as well. If there are problems or complications by way of insufficient personnel or administration, it seems to me that the Committee might with regard to this particular aspect of the charter suspend its application until it is appropriate from an administrative point of view to implement it, but the principle itself we believe should be included in the charter.
Finally, Mr. Chairman, I would like to draw the Committee’s attention to certain disparities between the English and French text in the charter itself. For example, the Committee observed that the word “extend” in Section 16(2) is rather imperfectly reflected by the French equivalent of “d’améliorer”. The two concepts, we believe, should be brought into line and this might be brought about by changing the English word “extend” to “improve”.
Similarly, with respect to Section 19 and Section 20 the Committee observed that the words “English” or “French” are imperfectly reflected in the French equivalent “la langue officielle”.
There seems to be here, furthermore, a conceptual difference. We recommend that these two concepts in the English and French versions be brought into line.
I might perhaps at this point ask Maître Frank Schlesinger from Quebec if he could speak to Section 23 of our brief wlth respect to the matter of minority language rights.
Maître Frank Schlesinger (Chairman of the Quebec Region, Canadian Jewish Congress): Thank you, professor Cotler. Mr. Chairman, Ladies and Gentlemen, the Canadian Jewish Congress has always taken the position that all persons should be equal before the law and therefore, in keeping with the spirit of the charter as set forth in Section 15(1), it is felt that distinctions should not be made on the basis of citizenship with regard to language of education rights, I would perhaps at this point read the suggested text of a redrafted Section-23(1) in virtue of the importance of this section. It is located on page 11 of our brief and we suggest that the text should read as follows:
Any person residing in Canada whose language of education at the primary or secondary level is that of the English or French linguistic minority population of the province in which he or she resides has the right to have his or her children receive their kindergarten, primary and secondary school instruction in that minority language.
Sorry, it is on page 12. You will note that we have taken out the portion of the existing resolution which refers to “where sufficient numbers warrant” and we have instead replaced that by a provision of sufficient numbers only in terms of the obtaining of public funding, which reads as follows:
If he or she resides in an area of the province in which the number of children of such residents is sufficient, public funds shall be provided for such instruction. It might perhaps be of interest to the Committee to have some insight into the reasoning behind the suggested wording with respect to those who are entitled to receive minority language education.
Our committee thought that the concept of mother tongue or language was simply too vague. First language learned and still understood requirement could lead to injustices.
We, Quebecers, have had a sad experience with Bill 22 as regards exams and language tests.
How does one determine mother tongue or whether a language is still understood without being obliged to resort to testing? It was felt by our committee that some objective, easily verifiable and clear criteria of identification with a linguistic group was needed. The fact of someone having received a part of his basic education in a minority language seems to fulfill these requirements better than anything else of which we were able to think.
Take, for example, the case of a person from Vietnam, which was raised by the Honourable Warren Allmand earlier when the Positive Action Committee was speaking. According to the formula set forth by the Canadian Jewish Congress if such a person had received part of his education in the French language, then his children would be entitled to receive French education in Canada.
Then the reason why we have not opted for an entire freedom of choice in language of education is because we acknowledge the aspirations and even anxieties of the francophone majority in Quebec.
For a long time and on many occasions, the Canadian Jewish Congress has recognized that French is a priority in Quebec and we have recognized that immigrants who do not belong to the minority language population will have to be led in the French stream.
With regard to Section 23(2), on page 13 of the brief, the same comments apply with respect to citizenship. Nevertheless, in view of the deletion of the citizenship requirement it was left that some provision preventing avoidance of the provisions of Article 23(1) regarding parents education is warranted. Since it appears that the spirit of Article 23(2) aims at protecting a child who has commenced his education in the minority language, in order that he may not be required to change in mid-stream, then our version is set forth as follows:
Where any resident of Canada changes residence from one province to another, and prior to the change any child of that person has received at least three consecutive years of his or
her kindergarten, primary or secondary instruction in either English or French, that person has the right to have any or all of his or her children receive their primary and secondary school instruction in that same language.
The same provision regarding funding where numbers are sufficient is repeated in Section 23(2).
And finally, ladies and gentlemen, and this is not in our brief but we feel should have been included in our brief, it was felt that the simple availability of funds or availability of education is not sufficient, that it is essential that the school and the curriculum be under the control of the minority language group, perhaps through control of individual school boards.
That is the essence of the suggestion on those sections and I will turn the mike back to Professor Cotler.
Professor Cotler: Mr. Chairman, referring now to Section 24, again there is no comment with regard to the matter of native peoples in our brief itself and I would just like to make the following comment here.
We understand that the approach taken before this Committee in the testimony by the Justice Minister and other representatives of the Justice Department is one that I think was referred to as negative affirmation, that is to entrench existing rights of native peoples without prejudicing the inclusion of new ones. We appreciate that the scope of treaty of aboriginal rights remains to be defined in discussions between the government, this Committee and the native peoples, and in particular by the native peoples themselves and we do not wish to speak on behalf of the native peoples nor are we authorized to do so.
At the same time, and as a result of discussions with some of their representatives, we are somewhat concerned that the notion of parliamentary sovereignty has in the past authorized the abrogation or derogation of existing rights while the rights themselves may be said to continue to exist. Nonetheless, they exist in what might be called abrogated form.
Accordingly, we would like to suggest that the Committee consider protecting against the abrogation or derogation from the rights of native peoples as well as including in later stages, if that proves possible, protection for treaty and aboriginal rights if an appropriate agreement can be secured between the representatives of the native peoples appearing before this Committee and Committee members themselves.
Section 25, Mr. Chairman, I would just like to make comment in addition to that which you find stated on page 13 of our brief and that is there is again here a disperity between, as it appears to us, between the English and French versions of Section 25. Section 25 in English, in addition to “inoperative” says, “and of no force or effect”. In French simply the word “inoperative” appears.
We believe, once again, it may be necessary to bring these into line because it appears to us that the English version goes somewhat further than does the French version and it may be that the appropriate translation in French ought to be dovetailed with the intended sanction in the English version. Professor Cohen.
Professor Cohen: Thank you, Professor Cotler.
Just one more word on Section 25. Many of you recall the problems that plagued the Diefenbaker Bill of Rights as to whether or not it was retrospective as well as prospective, before or after the bill. We think there ought to be no doubt about what Section 25 means and the words “any law” should be followed with “before or after enacted”, so that whether it is before this charter is enacted or afterwards the charter will affect it, not in the way the ambiguity was left in the Diefenbaker bill.
Sections 26 poses no problems for us; Section 27, no problem. Section 29, we cannot understand why there should be the three year delay with respect to Section 15, bringing into effect.
It appears to be from the notes to the document distributed by the government that the problems of age create difficulty. We think that on a closer look into this matter it will be discovered that the phasing out problems wherever they take place, really do not require a delay in the whole process which this particular provision provides for, and we think, therefore, the Committee recommends the delay be restricted to the age provision alone and not to Section 15 as a whole, and even the age provision we think, probably, actuarily, it may not be as severe as it is believed to be.
Finally, we come to two new ideas in the presentation, one is the question of enforcement and the other is the question of the emergency doctrine. I think I will let Professor Magnet speak to the enforcement issue since he made some enquiries based upon our concern that the only way you can enforce this charter now is to wait for a case to come up in the ordinary civil or criminal way, but what happens if somehow there is harm done or on its way to being done and you do not have an ordinary civil or criminal proceeding en route. Perhaps you would just like to speak to that Professor Magnet.
Professor Joseph Magnet (Special Advisor, Canadian Jewish Congress): We have any numerous examples of this, but to take the two most obvious, the Hogan case in the Supreme Court of Canada, it recognized the violation of legal rights under the Diefenbaker Bill of Rights, the court said: Well, we see no remedies clause here, we cannot grant a remedy.
Similarly, as you know, under Section 23 of the Manitoba Act there is a proscription there that acts be published in English and French. What is the remedy for failure to comply?
Well, we think that to deal with problems like this, as well as the full panoply of rights which will be entrenched in the charter, that an enforcement clause is crucial, that the charter would be hollow without it and we think that this is in
conformity with our international obligations under the Covenant on Civil and Political Rights, the text of which is set out for you. There is also a right in the Covenant to damages which is set out for you in the brief.
We are concerned that the courts not run wild with enforcing the charter. We do not think that the charter applies fully to the private sphere. We do not think that the charter constitutionalizes tort law, nor do we think it constitutionalizes contract law or property law. We do not think that if a particular person does not receive an invitation to a Scottish home, for example, that he has a right of action under the constitution. We restrict our submission in the enforcement clause to public authorities.
Similarly, we note that the enforcement clause we have proposed entitles the court to grant mandatory relief, that it can order the public authority to redress the right to grant a remedy as well as injunctive relief in cases of default, ind our enforcement clause is, on page 14. Everyone entitled in law to the performance by a public authority of an act or omission shall, in cases of actual or threatened default, be entitled to full and effectual relief by mandatory or restraining order of a superior court to compel the performance of the act or omission. Pecuniary compensation shall be awarded in appropriate cases.
Professor Cohen: Finally, on the emergency doctrine we spoke about earlier, perhaps Professor Magnet might address himself to that, too. Page 15.
Professor Magnet: The submission on the emergency clause flows out of earlier remarks that professor Cohen made with respect to Section 1.
We recognize that rights under the charter may be suspended during emergency. We do not think that charier rights can rise supreme above the necessity to defend Canada from external attack or from internal attack, or from natural calamity. However, we also think that external attack is not the same thing as internal attack and that both of these differ once again from natural calamities. So we do not think it is a sophisticated approach, nor do we think from the viewpoint of comparative constitutional law that we should grant authority to suspend this charter wholesale in any emergency. We think, rather, that we need a more sophisticated theory of the suspensive effect of the charter and we have included a cause to deal with this at Section 28(a): In case of war, domestic insurrection or natural calamity threatening the life or safety of the nation or any part thereof the rights enumerated in this charter may be subjected to such reasonable limits as are strictly required by the exigencies of the actual emergencies.
And we have also provided for the lapse of these measures after 20 days unless further extended by a two-thirds vote of the Parliament of Canada.
Professor Cohen: Ladies and gentlemen, I will turn it over now to Professor Cotler. I think we have gone through this, I
have the feeling as you are listening to us that a great charter in the late 20th Century should oscillate somewhere between poetry and punishment, and how you do that I think is up to you. Thank you for listening.
The Joint Chairman (Senator Hays): Thank you very much, Professor Cohen. Mr. Fraser.
Mr. Fraser: Thank you very much, Mr. Chairman.
I guess we have to really start all over again because I think you have now come to the end of your opening remarks, gentlemen.
I notice that as you got towards the end there were fewer and fewer pauses and hastier and hastier deliberations, but I just want to say, certainly on behalf of my colleagues, to Professor Cohen, Professor Cutler, Maitre Frank Schlesinger and Professor Magnet how much we appreciate your being here tonight.
Now, I have an observation to make. I gather that the thrust of your comments, at least at the earlier part of the evening, are aimed at establishing that you agree in principle with an entrenched charter of rights, and I see Professor Cohen nodding, but I think that it would be instructive if we just considered what in fact you have delivered to us tonight because I followed with some diligence your comments and I find that to begin with you want to delete Section 1, that is the exception section, so you would take that right out of this proposed charter.
In Section 2, I am not sure if you wish to amend it, but you have some concerns about where hate propaganda would come in it; Sections 3 and 4 you would amend; Section 5 you would leave alone; Section 6 you would amend; Section 7, you make an assumption there which you hope the purport of the words backs up but I think you leave that open to amendment; Section 8 you want redrafted; Section 9 you want redrafted; Section l0 you want broadened; Section ll you wish redrafted; Section 12 you leave alone; Section 13 you want broadened; Section 14 is left alone; Section 15 is left alone, but Section 16 you wish changes in the wording; Section 17 and 18 escape your careful scrutiny; Section 19 requires changes in the wording; Sections 20,21 and 22, again manage to survive; Section 23 you wish redrafted; Section 24 I thought you were going to leave alone but I think Professor Cotler got to it at the very end and you want some changes there; Section 25 you would amend; Sections 26, 27 and 28 survive; Section 29 is amended and then you add some new sections, 25(a) and 28(a).
Now, gentlemen, we are delighted to have you here but you really have come to us and said: Look, there are some shortcomings in this bill, but we have just rewritten in for you.
Professor Cotler: Mr, Fraser, we have great respect for the sovereignty of Parliament. We felt that the members of this Committee might be able to respond to some of the suggestions and if in their wisdom they felt it appropriate could amend or alter any of these provisions as suggested.
Professor Cohen: I think, Mr, Fraser, I might just add a word to Professor Cotter’s remarks. You do us a superlative
injustice. We do not see in this document an unusual document. We do not see anything but a very serious effort to come to grips for the first time in Canada with an entrenched bill of rights in a very constructive way.
That there are drafting problems of real substance, in some cases serious, in some cases less serious, is the consequence of a line by line examination by this Committee, and I would not want you to think that although the document, to use Gordon Fairweather’s phrase, may be flawed here and there that it is any less a creditable beginning, but it is only a creditable beginning to be completed by you.
Mr. Fraser: Professor Cohen, I accept your admonishment. I do not know when the word superlative has been used quite in that context before but in any event I think we have got the point. You believe in a charter of rights; you see one particular and very, very serious flaw with this one and that is Section 1 which gives exceptions that, I gather what you are saying, literally strip the rest of it, no matter what the wording may be, of its real impact and its long term security for civil rights.
Professor Cohen: That is a possibility.
Mr. Fraser: You say it is a possibility. I would have taken your remarks and your colleagues’ remarks tonight as going further than that. I would have said that you are telling us that it is more than just a possibility that Section 1 reduces the security that one would hope for in a charter of rights if one is going to have one. I thought you were being stronger than that.
Professor Cohen: When I say a possibility I mean that as drafted now, subject to the views of my colleagues on this who may want to say their own piece on it of course, that it is simply not possible to say in the same breath, let us have a doctrine of supremacy of Parliament, let us have a supremacy charter regime. You cannot have two supremacies, and that is all I am saying. If you are going to retain the two supremacies in this Section I then the courts are going to have an impossible task to reconcile them.
Professor Cotler: In my opening remarks when I said we welcomed the principle of a charter of human rights, I said then and repeat now that we would be less than candid if we did not acknowledge some of our misgivings with some of the disquieting features of the charter as we suggested during our discussion of it in a clause by clause approach.
This did not mean that we thought that the charter is thereby irretrievable or that the appropriate amendments or alterations could not be made so that the principle of entrenchment can be secured, the remedy can be in fact sustained and the appropriate alterations or amendments can be made in Committee.
Some of them in fact really refer to disparties in matters of the English and French versions and others refer to more broad concerns such as the deletion of section 1, but it may be that you may have a consensus that will emerge from different groups and others who have made that recommendation before this Committee as well within the Committee itself, so I am not that discouraged by the fact that while we may be suggest-
ing a number of changes that in fact the appropriate changes cannot be made.
Mr. Fraser: May I respond to that? There is no question that you have suggested a number of changes, in fact a great number of changes, and they may all be very wise ones, but my concern is that there has been a general view that somehow or other within these constitutional provisions there is a package which will automatically if only passed quickly secure rights which Canadians are led to believe that they will now have, and that others who I think are a little bit more thoughtful are led to believe will be confirmed in a more secure fashion.
I certainly take from what you have said that this Committee is going to have to do some work on this bill before it meets your satisfaction. I am not talking about in principle, I am talking about how it will work and I gather because you are nodding your head that you agree with me there.
Let me ask you something. I think you referred in your document and I think you were referring to Section 4, and if I am incorrect please correct me, I may be confusing parts of Section 4 with Section I but am I correct in saying that you are not considering Section I as it is presently drafted to be in any way related to an emergency situation.
Professor Cohen: I think in part Professor Magnet and the rest of us who did some work on it believe, we are only guessing, that in the minds of the draftsmen when they did Section I they had a bona fide belief they needed some reserve authority; Parliament had to have some residual authority to work when the exigencies of the occasion required.
We felt that the way we approached that problem of the emergency was better in 28(a) than leaving it residually in a doctrine of parliamentary supremacy in Section 1 because a doctrine of parliamentary supremacy in Section 1 then defeats the charter regime.
Mr. Fraser: And you did not look upon Section 1 of the Charter, Professor Cohen, as being necessarily linked to an emergency situation.
Professor Cohen: I said necessarily, no, it was broader than that, it was much more sophisticated than that, that is the difficulty. That is why we felt that if part of the thinking of the draftsmen in Section I was emergency thinking then let us confine it to emergency thinking, let us not have it so broadly based as it might defeat the charter system itself.
Mr. Fraser: Let me ask you this, because my time is probably nearly up. Ten minutes of questioning does not do justice to the presentation that you and your colleagues have given us, but it has been suggested here at this Committee that possibly if Section 1, which is the great exception Section in this Charter, remained in, that the rights that the Charter attempts to confirm and to secure might actually be diminished from the existing rights that are available at common law, contained in the criminal code, the conventions of the constitution and the existing Bill of Rights,
Can you help us at all in that regard?
Professor Cohen: You are asking a neat, hypothetical question.
Mr. Fraser: It has been posed to us.
Professor Cohen: Let me rephrase it so that I can perhaps shape my answer to my rephrasing. That does not quite sound right, I will think about that again.
If you were to say that the charter regime, generally speaking, replaces the existing general regime of rights, wherever they are, or codifies them where they are prisently in the common law then you may argue that to the extent that you have codified them in this Charter and to the extent that the Charter is subordinate in Section 1 to the residual parliamentary supremacy that is there, you might in fact diminish what may have been an older right; but remember that older right not entrenched is still subordinate to parliamentary supremacy so any older right not entrenched is subject to parliamentary supremacy. Therefore it is a kind of circular argument. If you codify it and you put it in a charter the charter regime left with Section 1 as it is now is subordinate to the residrial power of the supreme parliament as stated in Section 1 under special conditions.
Mr. Fraser: So I follow exactly what you are saying, let me ask you this. Do you feel that the charter as it presently exists, and let us put aside Section 1 for the moment, let us assume for the sake of argument that the charter can be made to meet most of your requirements, can you tell this Committee and the public that is watching, do you take it then that this Charter encompasses all the rights that we have received down through history or does this Charter just enunciate some rights, many of which we have had, and if it does, in what position are those other rights which may lie in the common law, the rules of evidence, the criminal code and other places, because I notice that many of the rights that are enumerated here except primarily the rights of mobility and the right of language education are rights that we have always assumed that we did have subject as they may be to parliamentary change.
Professor Cohen: Section 24 really tries to answer your problem. The guarantee of this Charter of certain rights and freedoms very carefully uses the words certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada including any rights or freedoms that pertain to the native people, which is an added thought to that, but the basic thoughts of Section 24 are in the first four and one half lines there. So my answer to you is twofold, one, there is an immense network at rights that are in the criminal law, that are in the law of torts, and the law of contracts. Some of them are highly personal, some of them are not. Some are extremely sensitive, as in the criminal law, some of them are not.
No charter purports to deal with the whole fabric of the rights and duty system that make up the democratic legal order but these represent an attempt to state some of the most important ones that time and experience has taught us to value highly, that stated in the way they are stated represent a supreme statement of the values this country holds very dear,
and that is about as far as you can go. They do not replace the entire legal order which itself is a systematic approach to rights.
Mr. Fraser: Thank you very much, Professor. I wonder if I could ask you one other question.
There has been discussion about the declaration somewhere within this proposal of rights which lie with the provinces, the right of control and management of natural resources. Significantly in the exchange of letters between the leader of the New Democratic Party and the Prime Minister of Canada the word ownership was never used. Unless the wording is changed the word ownership will not appear in whatever the draftsmen decide to put into this proposal, as a consequence of that arrangement between the New Democratic Party Leader and the Prime Minister.
By the same token it is curious, it seems to me, and I would like your comment, that the right of property is nowhere listed in this document as a fundamental right and there are certain rumors floating about that say that this was because of sensitivity to the sensibilities of the province in terms of the right of property as set out in the existing British North America Act which is our existing constitution. I notice that that sensibility to the rights of property has not stopped the proponents of this Bill from encroaching, if one wants to put it that way, into the area of civil rights, which is also a provincial matter under the British North America Act.
I am not arguing whether we should or should not entrench at the moment. I am just trying to draw from you why if we do entrench should not those two proprietry interests, one belonging to the province which is almost met by the words management and control, but fatally not met I believe; and the right of property to the person be listed here as well.
The Joint Chairman (Senator Hays): That is the last question, Mr. Fraser.
Professor Cohen: I do not know if I am really competent to answer all the implications of your question. One very brief answer, I too looked at Section 7 which is a key issues, as you raise it. Everyone has the right to life, liberty and security of person. I said to myself, where is property in the classical flow of things.
I have a feeling, the Department of Justice and the PMO did not consult me on the issue so I speak with the greatest of freedom, but I have a feeling that perhaps those who are responsible for the drafting of Section 7 were really concerned for the history of the way the word property was attacked in Amendment 14 and Amendment l5 of the U.S. Constitution when the due process clause in a substantive way played havoc with the way in which Congress could enact certain legislation, and much of the early new deal invalidity came from the Supreme Court’s use or misuse of the due process clauses as it affected property.
It may be, then, that in the wisdom of the draftsmen, they did not want to get involved in a hassle in the future over peculiar variations in the meaning of the word “property” as these might involve very important acts of high economic and
social policy at both the federal and provincial levels. That is only my guess.
But having said that, I really have no strong personal view one way or the other on the matter. I am only trying to answer in a kind of hypothetical way why the word “property” is not here now. Whether it should be here now is a matter, it seems to me, of legal or aesthetic choice, and I would guess there are people here who would argue that a modern document of this kind does not need the word “property”. Others would say you cannot have a free enterprise society without it. There are strong arguments both ways.
The Joint Chairman (Senator Hays): Mr. Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman. I would like to commend the Canadian Jewish Congress on a very comprehensive brief which they have presented this evening. We very much appreciate the work which has gone into it, which has been very extensive.
Earlier today we had the Canadian Civil Liberties Association before us, with Professor Walter Tarnopolsky and his group. They made very strong criticisms of the Charter as well. What he said to us was that if the charter were not radically improved, we would be better off with what we have today, rather than with what we have in this document before us. Would you concur with that?
Professor Cohen: It is difficult to speculate at this time what might be the end product of this deliberative process. At this point all I can say is that we are in favour of an entrenched bill of rights, and believe it to be the appropriate remedy to secure rights which have not in fact been secured through an ordinary statute or even a quasi constitutional statute, if one wishes to elevate it; the Canadian Bill of Rights applies only to matters within federal jurisdiction.
We believe entrenchment is the appropriate remedy, almost the only way to bring about that proper protection
We have some misgivings and they are disquieting features, and we hope it would be altered or amended and trust the end product would be one which we could support.
I would hope it would not be at this point the kind of “either/or” choice, wherein if we did buy this one, we get nothing. Let us see if we can improve it and hope that we let something.
Mr. Nystrom: Our Party also supports the enshrining of rights in our constitution, but would be moving a number of amendments, some along the lines of the recommendations you are making tonight.
My question to you was: we had a comment from the Canadian Civil Liberties Association that if the wording remained as is now in the resolution before us, we would be worse off by enshrining this than remaining with the status quo, I am just wondering whether you care to comment on that? Do you concur with that?
Professor Cohen: To really do justice to that very important question, Mr. Nystrom, one would have to set out in two
columns the present language proposed here and the kind of rights which now exist, whether it is bail, evidence, legal rights, mobility rights, and to see how far the system proposed here derogates in any way from what may be called the existing mixture of common law and statutory rights.
I am not prepared to be that categorical without that kind of meticulous homework.
My instinct, quite frankly, is against the assumptions made by the Civil Liberties Association. My instincts are against the assumptions made by the Civil Liberties Association, and I will tell you why. It is not that I am any less a civil libitarian than they are. In fact, I believe my record is as good as theirs in the battle for the classical rights of all of us.
But I do think that, here is an effort to introduce a basic charter regime, where we have not had it before. We had it in Section 93, and in Section 133, and in Section 123 of the Manitoba Act. We have parts of a charter regime. We have little bits and pieces of it.
Now we would like to have a comprehensive charter regime on some of the major and substantive questions of our time as they affect criminal law and the whole area of how much mobility this country could stand to give an entrenched, enshrined, quality to these matters.
Now, of course, we can recognize tonight that some parts of the document need improvement. But if you were to ask me the brute question: “are we better off without it than what is here tonight, unamended, I would still go for this on the assumption that the courts would alleviate the crudeness in some of the language, I say crudeness with a certain amount of humility because you probably have here very good draftsmen; but crude by our standards, I should say.
So, at the end of the day I must say I go with this, but I do so with great reluctance.
Indeed, this would be a meaningless exercise for all of us if we do not expect some results from the presentations made every day before you. I would hope that the government is going to respond. If they do not, then this is just a charade; I cannot think this is a charade.
Mr. Nystrom: I am very hopeful the government would respond as well. But I would like to get down to Section 1. I very much like what you said about Section 1. I agree that Section I is inconsistent with the International covenant on civil and political rights which we signed in 1966.
I would like to ask you this. In your opinion if the charter had been as written today with Section 1 in it, which says the rights and freedoms set out are subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government-Section 1-if the charter were in effect in 1970 during the war measures crisis, the October crisis, do you think many things would have been different in terms of people who were arrested, people who were denied basic civil liberties, because during that period of time, according to all the public feed-back I had as a member of Parliament, and according to all the polls, what was being done was generally accepted in the country;
was generally accepted by about 85 per cent according to the Gallup Poll.
Professor Cohen: Well I lived in Quebec in those days. I have never had any doubt-I do not know whether my friends on the left or right of me agree with me but I have never had any doubts that there was a perfectly reasonable basis for men to be afraid enough to call in the troops on October l6th. you had to live in Montreal and have the sense of fear that dominated the whole environment. Without living there, I would say that people who write books today and say how wrong they were, simply were not part of that scene. I would say that my credentials in this area are as good as theirs.
But having said that, I have not answered your question. That is the way that I planned it.
I would guess, Mr. Nystrom, that given that language in 197O, or given the language that professor Magnet suggested for Section 28(a), you would have had a residual right to use that degree of force required by the occasion.
The great difference in that would be (and this professor Magnet did not say) that the logic of 28(a) is the drafting now of something less draconian than the War Measures Act for degrees of emergencies in this country.
What we need, therefore, is to execute the promise that was made post-1970 for a less draconian piece of legislation, and that has yet to be done, and should be done simultaneously with the reconsideration of the amount of reasonable force required by society in a case of emergency. That requires a new approach and a new statute.
Mr. Nystrom: In addition to Section 1, the present provisions as drafted in Section 8, 9 and part of Section 11 will authorize some of the procedures taken out pursuant to the War Measures Act in 1970, and that is why we made the recommendations that we did with respect to altering the language in Sections 8, 9 and I I with regard to the exemptions in regard to the procedures established by law. We believe that did not really provide any standard whatsoever and should be altered; otherwise the kinds of things like arbitrary searches and seizures could, in fact, be authorized by a statute such as the War Measures Act.
And if I may, Mr. Nystrom, in regard to an earlier question on the Canadian Civil Liberties Association and ourselves, speaking as a member of the Board of Directors, I think the; difference between the Canadian Civil Liberties Association and ourselves is not only that they have scepticism about this particular charter of human rights, some of which disquieting features we may share, but there is a greater scepticism about the charter as a remedy per se amongst the CCLA people and therefore, there might have been objection regardless of the nature of the charter that would have been before this body.
So, what you are basically saying to me is that if the charter as written had been in effect in 1970, what
did happen probably would have happened, Would that have been the case about 40 years ago with the internment of the Japanese-Canadians, would this charter have prevented what happened to the Japanese-Canadians ?
Professor Cotler: I think it would have prevented, speaking with hindsight, that kind of internment; that would have been struck down by reason of the charter, though it is hard to say-and one cannot speculate what might have happened with regard to the War Measures Act. I suspect the authorizations there would have been sustained.
Professor Magnet: If I may just add a word to that, Section 6 provides, inter alia, that every citizen has the right to remain in Canada. As you know, the Japanese Canadians who were deported were citizens of Canada, and therefore would have had full protection of Section 6(1) and could not have been deported.
Professor Cohen: As a matter of fact, on that point, many Canadians forget that the Privy Council judgment on the Japanese Canadian case was a monstrously indifferent judgment when it came to simple principles of public international law, because they could easily have said that the deportation of Canadian nationals to a foreign country without that country’s approval is the imposition of one sovereignty over another, even though Japan was an occupied country, and the occupation power had to be stretched a long way to getting U.S. approval to land these deported Japanese Canadians.
So that there is not one piece of language in the judgment of that court which shows any understanding of what it means to deport your own nationals to the territory of another country. Now, this would prevent that.
Mr. Nystrom: Now, you referred earlier to the emergency suggestions you have about the limitation clause-Section 28(a), and you are talking about a two-third vote of parliament being needed to define-“emergency”. If there was an emergency, I understand you would suspend the rights we have in the Charter. Are you talking about a suspension of all the rigths in the Charter, or even if you do have an emergency which (you call here a war or domestic insurrection, or natural calamity) is affecting the life and safety of the nation or any part thereof, would there not be an argument for still maintaining the rights?
For example, can we justify, even in that kind of emergency, cruel and unusual punishment, referred to in Section l2 of the resolution, or some of the anti-discrimination stuff in Section 15, based upon sex or national origin?
Professor Cohen: I would have thought that we have not done our homework on this, that is to say the detailed kind of degree of suspension, what might or might not take place, depends upon the degrees of the emergency. We have not thought through the different types of emergency, from a great public health emergency to a natural calamity emergency to an invasion emergency, and that homework has to be done.
Professor Cotler: I think you are right. There are some rights which should never be taken away, such as the right to be protected against cruel and unusual punishment. I had occasion as counsel to the CCLA to make a submission along those lines to the MacDonald Commission of Inquiry, and I would associate myself with the remarks therein made, that certain rights even in an emergency, must not be abrogated.
Mr. Nystrom: I would like to refer you now to Section 42, which is the amendment procedure. In your opening comments tonight, you said you were sticking to the Charter and not getting into aspects of the resolution before us. But under Section 42, under certain conditions, a national referendum may be held to change the constitution of Canada.
Now, my understanding of the main purpose of the referendum is to break a deadlock concerning the division of power as between the federal power and the provinces. We also had Mr. Chrétien, the Minister of Justice in here saying that once we have acquired the right in this country that that right should not be taken away and he referred specifically to Section 23 of the Manitoba Act and Section 133 of the BNA Act as it pertains to Quebec, providing rights for the English minority in Quebec and the francophone minority in Manitoba.
I was wondering whether or not you had given any thought to limiting the scope of the referendum that is referred to in Section 42 so that we could not have a referendum to take away the rights that we have acquired under the Charter. If we wanted to add rights, we could always add the rights through the amending formula; if we wanted to change those rights, we could,always change them through the amending formula. But is there any reason to have a referendum provision that is applicable to rights and taking those rights away.
Professor Cohen: I thought there was something here which says that the Charter could only be amended in accordance with 50(b). What does it do to your question?
Mr. Nystrom: That is what I am basing my question on because it says that . . .
Professor Cohen: 41 or 42.
Mr. Nystrom: Yes, 41 is the amending formula, 42 is the referendum.
Professor Cohen: When we began our homework, Mr. Nystrom, in all frankness we had a choice to make. There was not much time, the meeting of this Committee occupied us in August and September. We were given a target date more or less that blew out of the announcement of October 6 and it was all we could do really to do justice to the complexities and the importance of a Charter.
I am not prepared really to enter into a debate on the amending formula at this time simply because I have not done my homework with the degree of sophistication that it deserves.
The Joint Chairman (Senator Hays): Thank you, Mr. Nystrom.
Senator Goldenberg: I have only one or two questions but I want at first to congratulate the Congress on the quality of its brief and the manner of presentation.
The brief makes frequent reference to the fact that Canada is a party to the International Covenant of Civil and Political Rights of 1966. It suggests that Section 1-by the way, I agree with the criticism of Section 1. The brief goes on to say on page 2 that Article 5 of the International Covenant provides that no state may limit rights and freedoms to a greater extent than as provided for in the present Covenant.
Could you give us a general idea of what restrictions on rights the Covenant provides?
Mr. Cotler: I have the Section of the Covenant in front of me.
And Article 5(2) of the Covenant provides that there shall be no restriction upon our delegation from any of the fundamental human rights recognized or existing in any state party to the present Covenant pursuant to laws, conventions, regulations of custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
I should also print out that at Section 51 of the International Covenant it is provided that nothing in the present Covenant may be interpreted as implied for any state, group, person, any right to engage in any activity or perform any act into the destruction of any rights and freedoms recognized herein, and this is the point, or at their limitation to a greater extent than is provided for in the present Covenant and the Covenant recognizes no such sweeping limitations of rights as is contained in Section 1, not at all.
Senator Goldenberg: On Section 2 I was interested and have been concerned myself with the possible impact of freedom of speach, freedom of expression on hate propaganda legislation.
Would Professor Cohen tell me whether or not there is a similar provision guaranteeing freedom of expression in the federal Bill of Rights and the various provincial legislation.
Professor Cohen: The Diefenbaker Bill of Rights says expressedly freedom of speach. I think that the Saskatchewan Human Rights Code recently codified has similar language. I would be surprised if most of the human rights legislation of the provinces do not have parallel language, the Quebec Human Rights Code and so on.
So that in general as a concept I think it is widely used as a phrase.
Curiously enough, Senator Goldenberg, the International Covenant has, under Article 20, language that will interest you, and that is, any propaganda for war shall be prohibited by law; Article 21. Article 20, Clause 2 says that any advocacy of national, racial or religious hatred that constitutes incitement, discrimination, hostility or violence shall be prohibited by law. And that is a covenant to which we are a party.
Senator Goldenberg: Of course, there are no sanctions for not observing the Covenant, are there?
Professor Cohen: No, there is a moral obligation.
Senator Goldenberg: Oh, no, no, no, it is more than that. I have the most recent Canadian government statement of the issue made only a few months ago to the Human Rights Commission, Human Rights Committee of the United Nations and Mr. McPhail, the Canadian delegate says on page 3 of his presentation on March 27 last, the Covenant, though ratified, was not part of the law of Canada; that is to say, in what sense?
Professor Cohen: The federal and provincial governments however are aware of the need to insure that present and future legislation was consistent with the covenant, had committed themselves to amend existing law, where necessary, in order to bring them into accord with the covenant and to resolve any inconsistencies there might be between the covenant and the law.
Now, the reason for Mr, McPhail’s careful statement, Senator Goldenberg, is that we do not have the self-executing treaties in Canada, you have a treaty that must be passed by government or passed by the province. If a subject matter is provincial, it must be passed by the province to be the law of that province; if the subject matter is federal, it must be federal.
Now, the international covenant is a mixture of the province and federal jurisdictional components.
Professor Cotler: I might add, Senator Goldenberg, that in Canada’s report, Canada is signatory not only to the covenant but to the optional protocol in its report to the Human Rights Committee. It says that the Government of Canada is answerable to the international community for non-compliance in Canada with the obligations assumed when exercising its jurisdiction over foreign relations. It exceeded to the covenant and optional protocol, whether the non-compliance occurs in the field under its jurisdiction or that of the provinces.
I think the recent covenant by Sandra Lovelace on the matter of Section 12(1)(b) of the Indian Act which is now being considered by the Human Rights Committee is an example of the attempt to sanction non-compliance.
Professor Cohen: I just have one also very well known to you Senator and that is the basic doctrine of international law that is, the States must bring their domestic law in conformity with international legal obligations. And having ratified the covenant, we have a legal duty to bring our domestic law, federal and provincial into conformity with those obligations.
Senator Goldenberg: And you are suggesting that in this Charter of Rights that we are not doing that in a number of instances?
Professor Cohen: I am not doing it either entirely or only partially.
Senator Goldenberg: Thank you.
The Joint Chairman (Senator Hays): Shall we call it 10 o’clock. Agreed?
Thank you very much, Mr. Cohen and Mr. Magnet, Mr. Cotler and Mr. Schlessinger. We appreciated your presentation. Thank you very much for being here.
We will adjourn until tomorrow at 3:30 p.m. and the witnesses will be the Canadian Chamber of Commerce.
This meeting is adjourned.
Meeting adjourned at 22:00 hours.
From Canadian Civil Liberties Association:
Mr. Alan Borovoy, General Counsel;
Professor Walter Tarnopolsky, President;
Mr. J.S. Midanik, Q.C., a past president.
From Canadian Jewish Congress:
1) Mr. Max Cohen, Chairman, Selected Committee on the Constitution of Canada of the Canadian Jewish Congress;
Prof. Martin Friedland;
Prof. Joseph Magnet, Special adviser;
Prof. Irwin Cotler;
Mr. Frank Schlesinger.