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 9 (20 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 9 (20 November 1980).
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HOUSE OF COMMONS
Issue No. 9
Thursday, November 20, 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 Thursday, November 20, 1980:
Mr. Epp replaced Mr. La Salle;
Mr. Keeper replaced Mr. de Jong;
Miss Jewett replaced Mr. Keeper;
Mr. Robinson (Burnaby) replaced Miss Jewett;
Mr. Tobin replaced Mr. Lapierre;
Mr. Dion (Portneuf) replaced Mr. Henderson;
Miss Jewett replaced Mr. Robinson (Burnaby);
Miss MacDonald replaced Mr. Epp;
Mr. Lapierre replaced Mr. Tobin;
Mr. Epp replaced Mr. Fraser;
Mr. Tobin replaced Mr. Lapierre;
Mr. Robinson (Burnaby) replaced Miss Jewett;
Mr. Lapierre replaced Mr. Irwin;
Mr. Hawkes replaced Mr. Beatty;
Mr. Irwin replaced Mr. Tobin;
Miss Jewett replaced Mr. Robinson (Burnaby);
Mr. Gimaiel replaced Mr. Irwin.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Joan Neiman replaced Senator Gildas Molgat;
Senator Florence Bird replaced Senator William Petten;
Senator William Petten replaced Senator Florence Bird;
Senator Florence Bird replaced Senator William Petten;
Senator Yvette B. Rousseau replaced Senator John J. Connolly;
Senator Martha Bielish replaced Senator Duff Roblin;
Senator Robert Muir replaced Senator Martial Asselin;
Senator Stanley Haidasz replaced Senator Carl Goldenberg.
MINUTES OF PROCEEDINGS
THURSDAY, NOVEMBER 20, 1980
The Special Joint Committee on the Constitution of Canada met this day at 9:43 o’clock a.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Bird, Connolly, Goldenberg, Hays, Lapointe, Neiman, Roblin and Tremblay.
Other Senator present: The Honourable Senator Rousseau.
Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Henderson, Irwin, Miss Jewett, Messrs. Joyal, Lapierre, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Tobin.
Other Members present: Messrs. Allmand, Demers and Miss MacDonald (Kingston and the Islands).
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.
Witnesses: From the Federation of Canadian Municipalities: Mr. Dennis Flynn, President and Mr. Glennis Perry.
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.)
Mr. Flynn made a statement and answered questions.
Mr. Joyal assumed the Chair.
Mr. Epp moved,—That the Committee report immediately to the House of Commons and the Senate requesting that the deadline for the report of the Special Joint Committee on the Constitution be extended from December 9, 1980, to February 6, 1981, and that, upon a favourable decision by both Houses, the Committee shall advertise that the deadline for receiving written briefs or requests to appear before the Committee is extended to December 31, 1980.
On motion of Mr. Nystrom, it was agreed,—That the motion be amended by deleting the words “February 6, 1981” and substituting the following therefor: “February 10, 1981”.
After debate, the question being put on the motion, as amended, it was negatived on the following division:
The Honourable Senators
The Honourable Senators
Campbell (Miss) (South West Nova)
At 12:26 o’clock p.m., the Committee adjourned until 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, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Goldenberg, Hays, Lapointe, Neiman, Petten, Rousseau, Roblin and Tremblay.
Other Senator present: The Honourable Senator Bielish.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Henderson, Irwin, Miss Jewett, Messrs. Joyal, Lapierre, Miss MacDonald (Kingston and the Islands), Messrs. Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Tobin.
Other Members present: Messrs. Allmand, Hawkes and La Salle.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.
Witnesses: From the National Action Committee on the Status of Women: Ms. Lynn McDonald, President; Ms. Jill Porter, Member of Executive; Betsy Carr, Member of Executive; Mary Lou McPhedron, Member of the National Women and the Law Association. From the Canadian Bar Association—Newfoundland Branch: Mr. Raymond J. Halley, Q.C.; Mr. Ed Hearn, Member.
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.)
Ms. McDonald, Ms. Porter and Ms. Carr made statements and answered questions.
Messrs. Halley and Hearn made statements and answered questions.
At 6:14 o’clock p.m., the Committee adjourned until 7:30 o’clock p.m., this evening.
The Special Joint Committee on the Constitution of Canada met this day at 7:39 o’clock p.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Bélisle, Bielish, Bird, Haidasz, Hays, Lapointe, Muir, Neiman, Rousseau and Tremblay.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Dion (Portneuf), Epp, Gimaiel, Hawkes, Henderson, Joyal, Irwin, Lapierre, Miss MacDonald (Kingston and the Islands), Miss Jewett, Messrs. Mackasey, McGrath and Nystrom.
Other Members present: Messrs. Beatty, Mrs. Mitchell and Mr. Robinson (Burnaby).
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.
Witnesses: From the Canadian Polish Congress: Mr. Jan Kaszuba, President; Mr. Marek Malichi; Dr. Jan Federorowicz. From the Advisory Council on the Status of Women: Ms. Doris Anderson, President; Ms. Lucie Pepin, Vice-President for Eastern Canada; Ms. Mary Eberts, Legal Counsel, Prof. Nicole Duplé and Beverly Baines.
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. Kaszuba, Federorowicz and Malichi made statements and answered questions.
Mr. Joyal assumed the Chair.
Ms. Anderson, Pépin, Eberts, Duplé and Ms. Baines made statements and answered questions.
At 10:41 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Thursday, November 20, 1980
The Joint Chairman (Mr. Joyal): Order, please.
Could I possibly ask the representatives of the media with video or audio equipment to please leave the room so that we can get on with our hearings.
It is my pleasure this morning to welcome on behalf of all the honourable members of this Committee Mr. Dennis Flynn, who is the Mayor of Etobicoke and Mrs. Glennis Perry who is a member of the National Executive of the Federation of Canadian Municipalities, la Fédération canadienne des Municipalités.
I understand that Mr. Flynn has a submission or opening statement to make and that after he would be ready to answer questions from the honourable members of this Committee.
Mr. D. Flynn (Mayor of Etobicoke, National Executive, Federation of Canadian Municipalities): Thank you very much, Mr. Chairman and members of the Committee.
Rather than present the document which we have as the Report of the Resource Task Force on Constitutional Reform, I will make a different presentation in preparation for questions.
In a brief presented to the federal government on June 20, 1977, my fellows members of the Federation of Canadian Municipalities set out the following challenge:
We call for an urgent re-examination of the roles and responsibilities of our three levels of government, as well as the sources of revenue that go along with them, so that we may reshape our Confederation into one which fits the facts and realities of our present day. We believe that this nation’s strength can be enhanced, not lessened by a reassessment and reassignment of the proper roles of each level of government, including local government.
In his letter of response to an FCM Paper on Constitutional Reform in Canada, October 9, 1978, which was endorsed by the Federation’s 1978 Annual Conference, Prime Minister Trudeau summarized his government’s position by saying he was much impressed by the position paper that your task force prepared and that the Federation approved. He said you were doing your work before Bill C-60, was made public, and it was remarkable to him the degree to which there is a parallel between the thinking of the Federation on a number of points of substance and the decision of the government which are reflected in the Bill itself. The federal government thinks it would be desirable to consider whether the new constitution should not recognize specifically the existence, and the need for existence, of the third level of government in Canada. . . provided that the ultimate responsibility of the provinces is not in question. . . it could also be useful to try to spell out the basic kinds of services which are traditionally provided by the third level.
It is with this background of substantive involvement in constitutional concerns that I, as the representative of the Federation of Canadian Municipalities, appear before you today, Obviously, the constitutional “great debate” will appear for some time. It seems to us essential that municipalities participate in the intergovernmental dialogue in co-operation with the other principal participants—the provinces and the federal government.
The Federation’s support for the cause of national unity is well known. We are concerned, however, not merely with national survival but, on a more positive front, with national revival. Confederation is capable of taking new directions, and the Federation of Canadian Municipalities is convinced that the current constitutional review should be regarded as a positive opportunity for Canadians to set these new directions.
In the Federation’s approach to constitutional change, we perceive these as guiding principles:
1. Successful reform of the Canadian Constitution can only be accomplished by a process which most citizens will consider to be fair, open and receptive to the claims of our cultural and regional interests.
2. First among our objectives must be the creation of a constitution which will allow French-speaking and English-speaking societies to achieve their full and varied cultural aspirations, while recognizing the special rights of our native peoples to their particular traditions.
3. Proposals for the redistribution of power between the federal and provincial governments ought not to be based on the principle of “change for change’s sake”, but rather, should reflect the regional needs of a modern industrial society established across the breadth of half a continent.
4. Suggestions for enchancing the status of municipalities under any new constitutional arrangement should be based on the principle that municipalities, in the first instance, ought to be assigned those powers which experience has indicated are best exercised at the local level.
5. It should be recognized that many of the cultural and economic problems of Canadians cannot be solved by constitutional reform alone.
In our opinion, constitutional reform, in order to enshrine these principles should include the following provisions:
1. Equality of status for the two official linguistic communities. The free and equal character of the partners in the federation must be emphasized to achieve a feeling of security and belonging.
2. A bill of human rights must be enshrined in the new constitution to ensure justice and equality for all Canadians. Among others, linguistic rights must be assured. Canada will not be able to endure and flower as a political entity without such a bill of rights, which would bind, at the same time. the lawmakers and the executive branch of
the different governments. These rights cannot be left to the generosity or intolerance of a parliamentary group.
We suggest that equality of opportunity, for the members of our two official linguistic communities should be an important part of the linguistic rights of this bill. More precisely, it is necessary to assure for all our citizens across the whole country, accessability in the two official languages to the following services:
(II) Courts (particularly criminal courts);
(III) Governmental services (federal and provincial);
(IV) Radio and television;
(V) Bilingual laws (federal and provincial).
Accessability should not be based on the number of citizens involved, except in the field of government services.
3. The new federalism must be sufficiently flexible and decentralized to satisfy the needs of the various regions of Canada.
4. The fourth fundamental element would be the ability to overcome economic disparities. It is not possible to achieve an acceptable federalism without some ability to redistribute wealth among the partners. This is not to say that the federal government should continue to spend in the legislative domain of the provinces and to define the priorities of the latter; rather, the federal government should correct regional disparities by means of transfer payments.
With the appointment of this Joint Committee the process of constitutional reform is under way. As we see it, following the presentation of the Committee’s report next month a constitutional convention should be called with representatives from both official language groups, the three levels of government, native peoples and each economic region of Canada. In addition, the compendium of responsible views presented to the Committee from elected officials from all parts of Canada should be considered as public opinion.
From this process we would hope that heads of agreement for a new constitution would emerge. The existing institutions of government would then test the recommendations, the validity and draft a new or revised constitution.
The Federation of Canadian Municipalities contend that as local governments we must be party to these discussions and negotiations. We are fully prepared to cooperate and assist in setting new directions for Canada which will serve the interest of all Canadians, directions which will lead us to a stronger, more united country in the decades ahead.
In conclusion, may I summarize the Federation’s recommendations and stress our committment:
I. We recognize that unwritten as well as written portions of the present constitutional arrangement will have to be dealt with;
II. We urge upon senior levels of government a process of constitutional reform which most citizens will perceive as fair, open and receptive to the claims of the cultural and regional interets of Canadians;
III. We recommend inclusion in this process of consideration of the individual opinions of all persons serving as elected representatives in the federal, provincial and local governments of Canada;
IV. We ae prepared to take the initiative in identifying all powers which reasonably could be assigned in the first instance to local government;
V. We recognize that cultural or linguistic freedom essential to the success of a Canadian federation can only be assured by a comprehensive reform of many laws, provincial as well as federal;
VI. We express strong support for the fundamental principles of equality of status and equal rights as to the use of the English and French languages;
VII. We urge that redistribution of powers between federal and provincial governments clearly reflect the regional economic needs of a modern industrial society;
VIII. We urge that municipalities be recognized as a distinct level of government under the new constitution;
IX. We urge that the municipal level of government be assigned in the first instance certain powers to be scheduled in the constitution and that municipalities may exercise those powers as a right so long as the provincial or federal governments have not occupied the field by adopting specific statutes to deal with matters within their residual jurisdiction;
X. We recognize that many of the cultural and economic problems of Canada cannot be solved by constitutional reforms alone;
XI. A bill of rights must be enshrined in the new constitution wherein linguistic rights, among others, must be assured.
Thank you very much, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Mayor Flynn. Senator Roblin.
Senator Roblin: Thank you, Mr. Chairman.
I would like to join in the welcome to you, Mayor Flynn, and to members of your delegation because not only do you represent a very important level of government in our Canadian community, but you have also given us a good deal to think
about in the brief that you presented to us and I would like to ask you some questions about it.
Perhaps in the first place you could fill me in on the strength and size of your organization. It is a national organization and it takes in municipal bodies in all provinces and in the Northwest Territories, I suppose?
Mayor Flynn: Yes, Senator, the individual or numerical number of municipalities is not large. However, through our provincial organizations in the various provinces we do in some way, directly or indirectly, affect all the municipalities in Canada that belong to either the provincial organizations or to our own, which covers some six thousand municipalities.
Senator Roblin: So that takes in the cities, the towns, the villages, the rural municipalities and all the rest?
Mayor Flynn: Every segment.
Senator Roblin: You are an umbrella organization?
Mayor Flynn: Yes.
Senator Roblin: I was interested in your suggestion that the municipal level of government should be recognized in any new constitution that we have. At the present time you take your responsibilities and your powers from the laws provided by the provinces of the nation; is that not correct?
Mayor Flynn: That is correct, Senator.
Senator Roblin: One of the things that has always been, I think, at issue in the municipal field is what functions should municipal governments be asked to undertake. Now, you are a government that is very close to the people and you have a very direct impact on the wellbeing of Canadians and what you do, therefore, is of very great importance and I think you recognize that in your brief but I wonder if you would like to expand on what you think ought to be the functions performed by the municipal level of government?
Mayor Flynn: Well, we do know what our functions are in the sense of supplying the services that come down from the other levels of government. For instance, we take, through the Province of Ontario in my own particular case, at the metropolitan level, the distribution of welfare funds. We supply the services through metropolitan Toronto of police. We supply the local services such as water, sewer and things of that nature, and those are the fields that we should be in. We do not want to be abreast of anybody elses field, we want to stay in local services as far as municipalities are concerned.
Senator Roblin: You have an original responsibility, I take it, with respect to services to property: fire protection, water services, streets and roads and that kind of thing. I suppose one of your problems is that as time goes on you become more involved in services to people, in the welfare and social area. Is that a growing area of your concern?
Mayor Flynn: Human services is a growing area, Senator, not only with welfare but the general wellbeing of people, whether through recreational facilities, housing facilities or looking after the geriatric responsibilities of the community now with an aging population.
Senator Roblin: As you look ahead do you see the municipal government being asked to perform different types of services from the ones that you perform now? Is your concept of the municipal function relatively static based on what we are doing at the present time, or do you see new responsibilities being devolved upon you?
Mayor Flynn: Senator, I see it expanding within the services that we now supply. As I have said, with an aging population we are now dealing more directly with housing for senior citizens, we are now into geriatric care in the hospital form of things, we are certainly into more recreation than ever before in the history of this country, but it is simply an expansion of the services that we are involved in rather than taking on new responsibilities necessarily.
Senator Roblin: So as you see it, it is how to do the present job you are doing as best you can and you do not really envisage at this date in time any drastic expansion in the type, more in the quantity and quality of the services that you are providing?
Mayor Flynn: It is a greater scale that we are involved in, Senator.
Senator Roblin: That brings me to the question of the means to do it because it is all very well to give a level of government certain responsibilities but it is important to make sure that they have the resources to enable them to discharge those responsibilities, and I suppose I would be right in saying that historically municipalities have relied upon the tax on land and property as the main source of revenue, but in recent times I noticed that provinces have opened up that field a little bit and in some areas they give you a share of the income tax and sometimes a share of the sales tax.
What recommendations would you have for us as to how we can relate the financial base of municipalities to the responsibilities they are asked to perform?
Mayor Flynn: Well, Senator, you are perfectly right in saying that property tax and business tax are two of the elements that we base our revenues on, and of course then we have to base the rest of our revenue on the largess of the province or any federal programme which is administered by the province, but I think that what we are talking about when we are asking for income tax is a clear defined portion of the income tax settled upon by the provinces and by the federal government, that we could rely on as an added income to the municipality so that we could release the burden of property tax.
Senator Roblin: I presume that, as you say in your brief, you are willing to take the initiative in identifying all powers that could be reasonably assigned in the first instance to a local government. Would your concept be that these powers be enshrined in the constitution?
Mayor Flynn: Yes, it is, Senator. We would like to see it enshrined in the constitution either through a provincial chart-
er where it would be spelled out, or directly into the federal constitution if there were no provincial charters involved.
Senator Roblin: And I take it that at the same time you would probably like to have some indication in the constitution as to what your revenue base would be in order to carry out those responsibilities?
Mayor Flynn: We would like to have some idea, either through a percentage formula or some formula so that we could understand exactly how much dependence we could place upon revenue.
Senator Roblin: I was much struck by one of your recommendations to the effect that the findings of this Committee ought not to be dealt with immediately by Parliament, but should be referred to a constitutional convention. You also recommended how that convention should be framed.
Do I take it from that, that you are really not asking the Parliament of Canada to impose a rule or regime on the provinces of Canada in respect of the municipalities? You are not really asking for unilateral action, as it is called, by us in this parliament, but in fact you are suggesting that after this Committee has completed its work, it should then be viewed by a more widely based body which you have called a “Constitutional Convention”. Is that correct?
Mayor Flynn: Yes, it is. We feel that because we are so close to the people in all aspects and have, in spite of what members of legislatures or Parliament may think, a very close relationship with our constituents, that the base should be broadened so that we could in fact, have some input.
Senator Roblin: Well, I certainly agree with your statement about the relationship between the municipal elected officials and the public. It is a very close one.
But I am rather relieved that you are not asking Parliament to impose a system of municipal regulation on the provinces, but are suggesting, rather, that this should be a matter for consultation and cooperation with the provinces rather than one of unilateral action as this particular bill in front of us really calls for.
Mayor Flynn: Senator, we are pragmatists, and understand the limitations that we can request and understand that the provinces are reluctant to have municipalities talk directly to the federal government.
Therefore, we would like to see anything which was placed in the constitution still within the framework of the provincial area.
Senator Roblin: I think that is a very wise approach and reflects your experience in dealing with public matters in this country, and I certainly agree with it.
May I ask you some questions about the actual bill we have in front of us. I think some of the provisions are going to affect the municipalities quite directly. I am thinking particularly of the part that minority language educational rights play in which provision is made for education in either of the official languages of the country. I note that—I must say with some
pleasure—your own views on the need for a wider approach on the question of language in the country.
Do you think it would present any serious problem to municipalities and the school boards which they usually finance to give effect to the provisions of this Section 23 providing education in both languages?
Mayor Flynn: Certainly, I think it would. I think we have to be realistic in understanding that if we are going to do that. although we espouse it, it would be a very costly thing to bring into operation because of the requirement for additional teachers and a different curriculum in which books will have to be published and so on and so forth. There can be no doubt that there would be a hardship in some instances on some municipalities.
Senator Roblin: Have you any suggestions to make as to how this extra expense could best be financed?
Mayor Flynn: I do not think that is properly within my field of responsibility so as to give you a proper response.
Senator Roblin: I fully appreciate that.
Mayor Flynn: I would be dancing around giving you answers which I feel are only personal, but not from an official point of view.
Senator Roblin: Well, in most areas, the basic educational financing support comes from property; but also provinces have been more and more apt to lend their financial support in the financing of education.
I was really thinking myself that it would be better that they should take this additional burden rather than it being placed upon property.
Mayor Flynn: Well, on the basis that it is a provincial responsibility, certainly in the case of the province that I understand best, there is a grant per student for each day in school, and that is provided on a universal basis to all students attending school within the framework of the public system; otherwise I would not know where else to get the money.
Senator Roblin: I see your dilemma.
There is another clause in this act which has to do with fundamental freedoms, and it forbids any discrimination among Canadians on the basis of age. As a municipal man, perhaps you see some problems here in that so many social policies, indeed educational policies, do have age clauses in them.
I wonder whether you think this is a matter which should be clarified before we go too far into the question of fundamental freedoms and discrimination, or whether you think it can be dealt with in the ordinary course of business if this age clause should come into effect?
Mayor Flynn: I think, Senator, it probably should be clarified. There are some real problems now in my own municipalities with various pension plans and the aging of people and the forced retirement of those persons. There is a bill before the legislature of the province requesting that that be lifted, be changed, and that the age question be entirely readdressed.
As a federation, we have not given consideration to that matter.
Senator Roblin: I guess if the age qualification comes into effect some of us will be faced with it, and I just thought I would bring it to your attention.
Mayor Flynn: Thank you.
Senator Roblin: I wonder if you would like to expand on your concept that it would be unsuitable for us to proceed with our constitutional amendments directly through Parliament, but that we should have a convention of some kind to deal with the matter.
How do you think such a convention should be formed?
Mayor Flynn: We think it could be convened on a reasonable basis so that you could seek the maximization of all the comment that should be obtained.
Senator Roblin: I think there is a good deal of merit in this indeed, but the question arises who do you ask to come, because everyone would want to come, and some have suggested that if we were to restrict attendance to elected officials of all parties and all level of governments with perhaps advisory groups who have a very great interest in the input, such as native peoples, that might be a useful base to consider, if we should go into a convention of the kind you have suggested.
Could you improve on that model?
Mayor Flynn: There are many, many cultural organizations throughout the country in a variety of situations; certainly you want the opinion of local politicians and you would like to have the regional comments from the cultural groups we have spoken about as far as native people are concerned. But I think the base should be as broad as is humanly possible so that we could obtain sufficient comment from all aspects of society so as to understand what their concerns really are.
Senator Roblin: I guess what you are really saying to me is that the constitution is not the preserve of the politician, and that we should give the people the widest possible input.
Mayor Flynn: It is not the preserve of Parliament alone; it belongs to the people.
Senator Roblin: I entirely agree with you.
The Joint Chairman (Senator Hays): Thank you, Mr. Keeper.
Mr. Keeper: Thank you, Mr. Chairman. Mayor Flynn, I would like to welcome you here as others have. We all welcome the participation of the municipal body in this process.
As a former city councillor, I have attended your national conventions and I have been aware of the discussions going on with regard to constitutional status. I have read your brief today and another one the other day.
One matter which stands out is that you have obviously, made recommendations with regard to the constitutional status of municipalities; but the underlying concerns or possible recommendations are quite varied, all the way from provin-
cial status to some kind of token recognition in a constitutional document.
This leads me to a desire to know more about what has led up to this desire for constitutional recognition. I am wondering if it is not tied up in inadequate policy matters from the federal and provincial governments; for example, the recent withdrawal of the community services contribution program as an arbitrary measure affecting municipalities; and not so long ago, the situation dealing with the grants in lieu of taxes; that matter was dealt with in a way which was not recommended by municipalities and was dealt with as a grant system, rather than as a taxation system.
I am wondering about this underlying, I would assume, frustration and discontent with regard to autonomy and decision making and financial resources. Could you elaborate on that, what has led to your desire for recognition of your constitutional status.
Mayor Flynn: I guess we feel that things have changed. Mr. Keeper, since 1867. I think that we find that things are significantly more in the hands of municipalities than ever dreamt of in those days and the production of services is very much ours, rather than other levels of government as far as direct service to people are concerned.
Therefore, as we kept on going in the services that were sometimes imposed upon us by either a federal action or inaction or a provincial action or inaction, the financial burden increased on the property owner, whether he was a home or a commercial or industrial person.
Therefore, we found ourselves frustrated, not able to carry out the various programs that we had that had to be done without great financial burden to all of these people. There were transfer payments, granted. The provinces increased their grants to us. The federal government over the years has made certain programs available to us through the province. But the frustration of not being able to direct ourselves totally financially has been very grave and that is one of the reasons why we are addressing ourselves to this purpose.
Mr. Keeper: So through you, Mr. Chairman, one of your main concerns then is that local governments have fully adequate and I assume free from arbitrary intervention sources of revenue.
Mayor Flynn: Yes, we would like to have a source of revenue which we could depend upon as a base. other than the property tax.
Mr. Keeper: I assume that the base of revenue would in large part contribute to the kind of decision making autonomy that you feel local communities need today?
Mayor Flynn: That is right; it would allow us to plan and undertake programs on a basis which we could finance properly with that known quality of money coming in.
Mr. Keeper: How important is it to you to be able to have the freedom to plan ahead as to meeting the needs of people in your communities.
Mayor Flynn: It is extremely important.
If we had that base of financial security we could certainly do much more planning in areas we have not touched now.
Mr. Keeper: I would like to shift now to another area of concern. I noted in your brief that you made specific reference of native rights as a priority. I am wondering, do you feel that in the communities across this country which you represent there is a general positive disposition to the entrenchment of native rights?
Mayor Flynn: Yes, but that was a feeling that we developed in 1978. It certainly was a consensus of the Federation.
Mr. Keeper: I guess, like native people who are feeling very excluded from this constitutional revision process, you have not been entirely satisfied with what opportunities ave been presented to you to participate in this process. Is that the case?
Mayor Flynn: That is quite true. although we were observers at the last conference that was held, the only document which I was given as I entered the room was a single piece of paper that told me of the 12 points on the agenda. I was given no back-up papers, no information at all. I was working from, as is well known, ziltch.
Mr. Keeper: That leads me to my final area of interest and that is you mention in your document a proposed constitutional convention as a means to ensure the participation of all groups in the constitutional revision process. Could you elaborate a bit on this constitutional convention: how do you envisage it, who would be included. etc.
Mayor Flynn: Well, as I suggested to the Senator, it would have to be done on a regional basis. It could certainly never be done in one single hall at one time. I see that all aspects of the community would be involved and all of the various societies around, whether cultural or political or whatever they may be, but the broadest base possible be given to regional—if you want to call them minor conventions, then that resolving into a major convention at which these things could be decided.
Mr. Keeper: Thank you, Mr. Mayor.
Mayor Flynn: Thank you.
The Joint Chairman (Senator Hays): Mr. Bockstael?
Mr. Bockstael: Thank you Mr. Chairman. Good morning Mayor Flynn. My first observation is that this year your Federation held its 43rd annual conference. So that under possibly a different style or different name your Association has been around for at least since 1937. During the course of that time, would it be correct to assume that your Federation has had the opportunity to monitor previous conferences on the constitution such as the one in 1971.
I note that your Federation prepared a brief in 1977 calling for the reshaping of confederation and that in 1978 you presented a paper on constitutional reform suggesting that it was a time for action.
When I read your brief that has been presented to us this morning, we see that based on the guiding principles that you espouse, you are prepared to ensure minority language rights and broaden the scope of the two official languages. Is that correct?
Mayor Flynn: Yes.
Mr. Bockstael: Further, you point out in clause 2 of your recommendations for enshrinement, that the bill of human rights must be enshrined and contain within it the linguistic rights. This is the second principle which we espouse. I am glad to see that your Federation is of a like mind.
Further down, you indicate that there should be equality of opportunity and that you wish to overcome economic disparities. Do I take from these statements that you are in favour of the equalization principles contained in the proposal?
Mayor Flynn: Very much so.
Mr. Bockstael: Then the other matter of concern is that you see a need for a new federation. I believe the language used is that we need a national revival of confederation so the time is right to repatriate our constitution. Are you in agreement with that?
Mayor Flynn: Although we have talked about it, we really have not addressed patriation of the constitution formally.
Mr. Bockstael: But you are in favour of Canada having its own constitution?
Mayor Flynn: Absolutely.
Mr. Bockstael: Because all of the conditions heretofore lead to that.
Mayor Flynn: Absolutely.
Mr. Bockstael: In your proposal, and I was a member of your Federation and I participated in some of your conventions and I was along with delegations who met the federal government and said we want a share of the growth taxes, we are not happy with the way the provinces are treating us, we cannot survive on property and realty taxes alone. Does it follow and you did say this morning that your Federation and the municipalities you represent are always subjected to the largesse of the provinces under which you are governed. Do I take from it that you would rather be a creature of the federal government rather than a creature of the provinces?
Mayor Flynn: Mr. Bockstael, I am sorry, I cannot agree with that statement.
If we are going to be anything we would like to be free. We cannot afford to be that, so, we would accept our jurisdiction under the province with different guidelines.
Mr. Bockstael: Well then, in the past and even today, the federal government has provided transfer payments to the provinces, but some of the criticism seems to come from the fact that the provinces does not always transmit to the requirements of the municipalities the share that the municipalities would like to have. Is that correct?
Mayor Flynn: My own experience has not been that at all, but rather that we were not able to complete the work within the time frame set down by the federal government and when we asked for an extension so that we could get all the money, we were cut off. So, it was not by the province but by federal consensus.
Mr. Bockstael: So then the thrust and objective of your brief this morning is that the third level of government should be established, the municipal level of government should be established in the constitution so that it would have the right to its autonomy in taxation, finances and legislation. Is that the thrust?
Mayor Flynn: Well, we think that everybody who is in the political field should be recognized in the constitution. That is essentially the basis of it.
Mr. Bockstael: But you were seeking in this earlier brief that was proposed sometime ago that, really what the municipal government required was an autonomy to make its own laws, its own financial requirements and its institutional autonomy in confederation.
Mayor Flynn: That is right.
Mr. Bockstael: So, that is really what you were addressing here. You are taking this forum to make these views known again which have been brought forward in earlier briefs to the federal government in regard to a new constitution.
Mayor Flynn: That is right, Mr. Bockstael, those are the fundamentals of our submission.
Mr. Bockstael: The difference that I detect exists is that rather than be proceeding with this constitutional repatriation and reform, you would have a different format under which it would have to be done through a convention which you suggest.
Mayor Flynn: Yes.
Mr. Bockstael: That is the only point it seems that you and I in this questioning differ on.
Mayor Flynn: Yes.
Mr. Bockstael: I just wanted to establish that is it and the main objective is this autonomy which the municipalities are seeking and would like to see it entrenched in the constitution.
Mayor Flynn: That is correct, sir.
Mr. Bockstael: Thank you very much.
The Joint Chairman (Senator Hays): Mr. Crombie?
Mr. Crombie: Thank you, Mr. Chairman.
Good morning and congratulations on your recent election in Etobicoke.
Mayor Flynn: Thank you.
Mr. Crombie: Subsection 8 of Section 92 of the British North America Act, Mayor Flynn, clearly gives the right to legislate with respect to municipal institutions to the province.
Mayor Flynn: Yes.
Mr. Crombie: I take it that is a situation you and your Association would hope would continue; is that correct?
Mayor Flynn: We have no dispute with that.
Mr. Crombie: Thank you. In your submission at page 8 you indicate that there is a desire, and page 8 in particular referring to recommendation number IX.
We urge that the municipal level of government be assigned in the first instance, certain powers to be scheduled in the constitution; and that municipalities may exercise those powers, as a right, so long as the provincial or federal governments have not occupied the field.
One of the difficulties given the fact that municipalities are governed by Section 92(8) of the British North America Act and putting that along with the request for certain powers to be assigned lies the question of (a) how that would be done and what vehicle one would use.
In the United States, municipalities have chosen the vehicle of a home charter or a municipal charter or home rule charter. Was it that kind of vehicle you had in mind or your Association had in mind if you were going to have certain rights and powers which the municipality would exercise as distinct from the province. Is that the sort of a vehicle you were looking towards?
Mayor Flynn: That is right, that is the sort of vehicle we are looking towards, that we thought might be expressed through the provincial portion of the constitution. It is not directly stated here, but if it was not the provincial portion of the constitution or provincial charter then it would be expressed in the federal constitution.
Mr. Crombie: So that in fact you would be happy in each of the provinces if there was a charter dealing with municipalities, any provincial charters dealing with municipalities which gave you autonomous areas of jurisdiction and also autonomous areas in terms of the raising of tax revenues.
Mayor Flynn: As long as that was folded into the Canadian constitution as a whole.
Mr. Crombie: I see, okay.
My second question along that line: Did you see any opportunities for variations from one province to the other, given that there are, for example, if I could use an example, in the Province of Manitoba, the Province of Manitoba is overwhelmed somewhat by the urbanism of Winnipeg. It is disproportionately large as it were in relation to the total population of that province. That is not true with the Province of Ontario and it is not true generally speaking with the Province of Quebec.
So that one could see there would be a variety of charters which would take into account municipalities in each of the provinces and, therefore, we would have to have perhaps 10 sections in the BNA Act. That does not offend you, that kind of variety?
Mayor Flynn: No, that does not offend me. As a matter of fact, I think that might be absolutely necessary considering the different makeup of each province and the requirement to service urban as against rural municipalities.
Mr. Crombie: Thank you very much. I have another line of questioning if I could, Mr. Chairman. I was struck with the document and, really, I think rather the sophistication of the Association.
In relation to cultural and linguistic rights, even on page 2, for example, when you talk about a new spirit of national revival, not merely national survival in taking new directions and so on and you seem to pick that theme up on page 3 when you announced the principle that:
First among our objectives must be the creation of a constitution which will allow French-speaking and English-speaking societies to achieve their full and varied cultural aspirations.
That reaches some concrete form on page 4 where you provide, and if I can read this, I think it is a great step forward for the Association:
We suggest that equality of opportunity, for the members of our two official linguistic communities, should be an important part of the linguistic rights of this bill. More precisely, it is necessary to assure for all of our citizens, across the whole country, accessibility in the two official languages to the following services:
(II) the courts;
(III) governmental services;
(IV) radio and television;
(V) bilingual laws (federal and provincial)
I do not think there has been a brief which has gone so far as that one with respect to municipalities that the Federation has undertaken. I may stand to be corrected that they have gene that far, but I do not recall it, but at any rate I am very impressed that you have it before us.
My question to you relates to the current situation with respect to Section 133 of the British North America Act Section 133 of the British North America Act, as you know, Mayor Flynn, refers to linguistic rights in relation to the Parliament of Canada, English and French, the Parliament of Canada, in the Province of Quebec and the Province of Manitoba. There are some who take the view that that section should include at least Ontario and New Brunswick and, therefore, take account of the 90 percent of the francophones who live outside of the Province of Quebec. They regard as inequitable the current situation where only Quebec and Manitoba carry out the responsibilities with respect to the courts and the legislature for bilingualism.
I wondered what the view of the Association was. Do they regard the current situation as inequitable?
Mayor Flynn: Yes of course they do. This is one of the reasons why this attitude was adopted in 1978 as a national feeling expressed through the Federation of the things that are required.
Mr. Crombie: You therefore would like to see included in Section 133, both New Brunswick and the Province of Ontario?
Mayor Flynn: Yes.
Mr. Crombie: Thank you very much.
Mayor Flynn: Thank you.
The Joint Chairman (Senator Hays): Miss Campbell.
Miss Campbell: I didn’t ask.
The Joint Chairman (Senator Hays): Mr. Fraser.
Mr. Fraser: Thank you very much, Mr. Chairman.
I notice, Mayor Flynn, in your brief you have not even attempted to address the actual proposal of the constitutional resolution which is before us. is there some reason for that?
You have given us some very interesting thoughts and while some are particular, your document is a general theme. but it is not an analysis of the constitutional proposal we have in front of us.
Mayor Flynn: That is quite true Mr. Fraser, and the basis for that is we are giving you the thoughts and ideas which have been approved at our annual conferences by the Federation and, unfortunately, we only meet once a year on a plenary basis and we have to rely on discussions of the executive and the board of directors to give me guidance as to how I should approach this matter.
While we did last week have a meeting in Regina of the executive committee, we have not had a meeting which would give us the authority to speak to the document itself until December. We are meeting on the 12 which is past the deadline which has been set for this Committee.
So therefore, we are not able to address ourselves directly to the document which just recently come out.
Mr. Fraser: Well, as you know, sir, and as your committee members would know, despite the fact that there has been a lot of talk about constitutional debate during the summer, in fact it was not until the recall of Parliament that anybody knew exactly what the federal proposal was and what you are telling me is that because this came late in the year and because of the deadline of December 9 which has been imposed arbitrarily by the federal government on this Committee, you are not in a position to bring to this Committee the considered views of your Federation with respect to this particular document. that is the constitutional resolution which is in front of this Committee and in front of Parliament?
Mayor Flynn: Yes. Part of our problem is that we do not have the views of the municipalities in plenary session on the document which is now before this Committee. It was not there in June when we had our meeting and it has not been there until recent time.
Mr. Fraser: Mayor Flynn, I am not in any way critical of you or the Federation or your committee, my criticism is of course reserved for the arbitrary imposition of a time limit that has been imposed by the government. My question is: if there was an extension of that deadline, some reasonable extension of that deadline, would your Federation then attempt to address itself to the proposition that we are faced with?
Mayor Flynn: The extension that we would require to address ourselves properly to the entire document I am afraid would fall on deaf parliamentary ears because we would not
have another plenary session until we met in Regina on June 8, at which time we will address the constitution once again.
I know the position that everybody is in with respect to the suddenness of the appearance of the document, but I do not think that I have established an official position from the Federation except on a personal basis to say that, from my point of view, the time is too short and that an extension in order to permit us to study the document properly so that we could make comment on it in all of its parts would be really required to extend it until next fall.
Mr. Fraser: That is why you have also recommended, I gather, that after this Committee deals with the witnesses within the limited time frame allotted to us we could hear, after this committee comes up with a report, that that report be submitted to a more representative convention of some sort drawn from across the country so that it could be discussed in its particularity?
Mayor Flynn: Yes, I agree with that.
Mr. Fraser: Well, let me ask you just one thing which you may or may not be able to get into and if you cannot, I will understand. You have seen the document and you have noticed that under the amending formula the use of a referendum lies completely and solely within the jurisdiction of the federal government, and under Section 42, as you will have noticed, only the federal government can initiate a referendum. In other words, if all of the provinces came to the federal government and said: we have propositions for change and we would like them to go before the people in a referendum, the federal government can say no. The converse of that is that the federal government can say: no matter what the provinces may think, we are going to go over your heads and go to the people and we will also run the referendum.
Now, my question is this: can you give any guidance to us as to whether you think that that is a fair proposition?
Mayor Flynn: That the federal government he the only decider as to whether there should be a referendum and how it should be approached?
Mr. Fraser: That is right, that is the way the proposal reads.
Mayor Flynn: The Federation does not agree with that.
Mr. Fraser: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Fraser, Our time has expired. We have had four members of the Opposition speak, we have one speaker left, Mr. Mackasey, and Mr. Mackasey, insofar as our time has expired, the Chair would want you to be very brief.
Mr. Mackasey: Thank you, Mr. Chairman.
Mr. Mayor, welcome. I have served three years in Council before and remember your association way back when Mr. Mooney was with us, such a long time ago.
I just want to clarify some of your answers to Mr. Fraser since Mr. Fraser was, I believe, attempting to force you into a position which I do not think you should have been forced into,
and that is passing judgement on the federal government’s deadline. I think you did state that you did not have enough time to do justice to this job, in fairness, because of the hurried-up procedure, if you like?
Mayor Flynn: Mr. Mackasey, what I said was that the document was not in front of the Federation for sufficient time for a thorough study by the Federation.
Mr. Mackasey: Fair enough. Mr. Fraser’s point, of course, is to create the impression that many, many hundreds of witnesses are not having a fair opportunity for a lot of reasons. You did state that regardless of this date, your Federation is not meeting anyway until June sometime.
Mayor Flynn: In plenary session. We will meet as a Board of Directors on December 12th.
Mr. Mackasey: But you did infer it was the plenary session where you would want to get the views of the municipalities right across this country on an issue that is vital to them, some of the sectors of the constitutional package here, the resolution?
Mayor Flynn: Yes.
Mr. Mackasey: And any other views you would be expressing would be personal?
Mayor Flynn: Any other views in the interim period would be that of either the Executive Committee or the Board of Directors, and partially personal.
Mr. Mackasey: In any event, your brief or your representations here, to represent all of your membership could not have been perhaps until next fall anyway?
Mayor Flynn: That is right.
Mr. Mackasey: And it is fair to assume that there are dozens and dozens of organizations in the same case?
Mayor Flynn: But what we have presented to you, Mr. Mackasey, is the opinion of the Federation.
Mr. Mackasey: I want to make it very clear that I am not reflecting on what you have presented. I think you have presented it cogently, logically and you have exemplified the dilemma of municipalities, all perpetually short of funds and needing at the same to render more services.
The point I want to make is that I want to point out that Mr. Fraser’s line of questioning was designed primarily to leave the impression that some how we are acting arbitrarily with our date and I just want to emphasize the fact that because of your plenary session which is in June, these dates would have to be extended for hearings until the fall in order to make it possible for you to reflect the views of the Federation?
Mayor Flynn: That is very true but I should point out to you, Mr. Mackasey, I am a very, very simple politician at the base level and I am not able to fence in this great degree of rhetoric.
Mr. Mackasey: As one Irish politician to another, I know exactly what you are saying.
Mayor Flynn: I hope you do because I do not know.
Mr. Mackasey: Do not destroy the mythology that you do know what you are talking about. What I am talking about and very bluntly I know what I am talking about, what I am saying is that the arbitrary date we have set and had to set in our Resolution is unfortunate for your association in the sense it did not give you enough time to consult your plenary.
Mayor Flynn: That is right.
Mr. Mackasey: But under normal circumstances that is only until June, that plenary, and our date would have to be some time in the fall to give you that opportunity?
Mayor Flynn: Well, Mr. Mackasey, I would have been satisfied if I had sufficient time to have a Board of Directors’ meeting with some lead time so that we could have addressed it with 54 members of the Board of Directors for the Federation…
Mr. Mackasey: Finally, one last question, and I do not want to abuse the time, you referred to the referendum, Mayor Flynn. Is that your personal view on the referendum or is that the view of your association?
Mayor Flynn: It is a personal view, Mr. Mackasey.
Mr. Mackasey: Fine, thank you, sir.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey. On behalf of the Committee, we should like to thank the Federation of Canadian Municipalities for being here this morning and to you, Mayor Flynn, and also to . . .
Mr. Beatty: Mr. Mackasey.
The Joint Chairman (Senator Hays): Mrs. Perry.
Mayor Flynn: Thank you very much, Mr. Chairman. I appreciate the opportunity on behalf of the Federation to come before you to make this presentation and hopefully we will be able to table these documents once again in our two official languages so that the Committee has it before them and I certainly trust and hope that the time will be extended so that I may be able to place some of the concerns before the Federation and bring back their opinion at another date.
The Joint Chairman (Senator Hays): You might send us forward the documents you have prepared for 1978 and 1971, we would be glad to have those, too.
Mayor Flynn: We will arrange that, thank you very much.
The Joint Chairman (Senator Hays): Thank you very much.
The Joint Chairman (Mr. Joyal): Mr. Epp on a point of order.
Mr. Epp: Thank you, Mr. Chairman.
You will recall in our discussions yesterday that this party, though feeling very strongly last night that the matter of the agenda should be resolved at that time, but in a spirit of co-operation and in the hope of making the Committee work more effectively agreed to hold that matter over until this morning. It is now my intention to proceed with that for this reason, Mr. Chairman: I believe it would be more equitable to the group of witnesses that are scheduled next, the National
Action Committee on the Status of Women, if I present my case at this time and do not in any way out into that second group’s period of time or jeopardize their testimony.
That being the case, Mr. Chairman, I hope members of the Committee can and will accept my comments in the spirit that I am trying to make the committee work more effectively, both on behalf of the witnesses and also the members of the Committee.
I think all members of the Committee would recognize, first of all, that we are experiencing difficulty in the scheduling of witnesses, not only in the actual scheduling but also in the time allocation of given witnesses during the time the Committee has been sitting. This morning, Mr. Chairman, just to prove the point, I think the argument could be made that, generally speaking, there was sufficient time for the witnesses that we had this morning, both on their behalf and also in terms of the Committee. Knowing the time constraints that there are. I think all of us are willing to accept a certain modicum of discipline on all of us, but it was interesting to note at the end of the testimony this morning that national groups are having difficulty in preparing briefs relative to the proposed resolution.
Yesterday, for example, the Chamber of Commerce and today the Federation of Canadian Municipalities, in both cases put forward strong positions on their general approach to constitutional renewal. I think there was general acceptance of the approach that both organizations had taken, but when asked specifically whether they had had a sufficient opportunity to address the proposed resolution before us in light of their policy statements that had been agreed to at their annual meetings past. both had to indicate that they had not had sufficient time. Not only did they not have sufficient time for an annual meeting to prepare that type of response to the proposed resolution, and I am not saying that that is an argument that the Committee should necessarily accept or fully endorse, at least to give them an opportunity to call a Board fo Directors’ meeting at which time they could specifically address their attention to the proposed resolution as it relates to the policy that they have taken in annual meetings past and then present that opinion, that policy statement to this Committee in light of the proposed resolution before us.
Mr. Chairman, I think it is generally accepted, both within this Committee and also to those Canadians who are interested in constitutional renewal that the Committee is bogging down in terms of its scheduling and therefore the issues are often being given secondary priority over against the problems the Committee is in fact experiencing, I do not think it is in the interests of Parliament or this Committee, for example, to have members of national organizations here and after a very brief period of time in which they are under restriction to be brief, to give their points very quickly and then be under the gun again in terms of answering questions, always knowing that time is so limited, that we then summarily dismiss them from this room and tell them to go back home and that if the Committee find additional time we might call them back again. That is neither a good use of time, financial resources or, for that matter, to give any clarity to the questions that are
before this Committee, Too often, Mr. Chairman, and I think again there is general agreement in the Committee, that in too many cases points are either not made nor is sufficient time given to develop the points.
I think there is another component to the problem we face and that is the manner in which we have divided the time, namely with the opening round, and I would suggest to you gentlemen, the Joint Chairmen and to my colleagues in the Committee, that the question of the opening round and subsequent rounds, that that be dealt with today in Subcommittee, agreed in Subcommittee and then brought back to this Committee in order that the Committee could function more properly, I believe that the guiding principle should be that there is a more equitable arrangement of the time of the Committee and that the approach be taken on the basis of representation or the strength of representation in the House of Commons.
A second problem that this Committee faces, Mr. Chairman, is that of the witnesses themselves, I am now not speaking of their time here in committee but the time witnesses need either to apply to appear before the Committee or to prepare written briefs, written documents. As you know, because of the December 9 deadline, the guillotine of December 9 the committee was forced to accept a November 25 date at which time Canadians either had to serve notice in writing that they would ask to appear before the Committee or to present written briefs.
I think all of us in fairness know that that is just not sufficient time either for a national organization or for even a small group of interested Canadians to develop a brief, have it prepared, have the typographical work done and have it submitted to this Committee. It just is not a fair approach, That unfairness was clearly demonstrated this last week in which an umbrella group in a letter signed by Her Worship, the Mayor of Ottawa, Marion Dewar, representing a number of groups such as the Anglican Church of Canada, the National Indian Brotherhood, in which they indicated more time was needed for them to prepare written briefs or to make representation that they would like to appear before the Committee.
Lastly, Mr. Chairman, is the matter of the life of the Committee itself. I was pleased yesterday, in exchanges in the House of Commons between my Leader and the Government House Leader, that I felt there was a new expression of flexibility on the part of the Government House Leader that the realities that I have now outlined again, and that have been outlined earlier in different form and by different members of the House and the Senate, that the reality of December 9 is becoming such that the Committee is not functioning and that the government members themselves are beginning to recognize the arbitrariness of that date. I just will read one or two excerpts of Hansard of yesterday, Mr. Chairman, just to make the point and not take too much time of the Committee. For example, on page 4848 of yesterday’s Hansard the Government House Leader said, and I quote him:
With regard to the extension of the timetable the Prime Minister told him
And he is referring to Mr. Broadbent in this case:
told him that he was very receptive to the suggestion and he explained to him clearly, referring to me, that I was prepared to be flexible and discuss the matter with the House leaders of the opposition parties.
Again he says on the same page:
I think that it is the proper procedure under the circumstances, namely a possible extension of the deadline.
On page 4849, in further questions to my Leader, the Right Honourable Joe Clark, he said:
I have no deadline in mind. My only wish is that a debate here be as thorough, reasonable and fair as possible.
Mr. Chairman, I could not express our sentiments any more clearly than that, that we want the debate to be fair, reasonable, thorough, that we also do not have an arbitrary deadline in mind and the Government House Leader has said that very clearly in the House yesterday.
Mr. Chairman, I know one could argue what is a reasonable deadline, what is a reasonable date? That causes difficulty for all of us, You know the other day that I served you, even though it did not have legal status, I served you with notice that I was prepared to move a motion, I have that motion here, I believe it is in order both as to form and as to substance, in both official languages, and I will make those available, Mr. Chairman, and give them to the Clerk. I would like to read the motion at this time, with your permission, Mr. Chairman.
That the Committee report immediately to the House of Commons and the Senate requesting that the deadline for the report of the Special Joint Committee on the Constitution be extended from December 9, 1980, to February 6, 1981, and that upon a favourable decision by both Houses the Committee shall advertise that the deadline for receiving written briefs or requests to appear before the Committee be extended to December 31, 1980.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Epp.
Mr. Corbin: Mr. Chairman, on a point of order.
The Joint Chairman (Mr. Joyal): Yes, Mr. Corbin.
Mr. Corbin: Could you please circulate immediately the text of the motion?
The Joint Chairman (Mr. Joyal): Of course, I think that the Clerk of our Committee has already done whatever is necesary for the honourable members to receive the text of the motion presented by Mr. Epp in Canada’s both official languages. [Text] One point, Mr. Epp, before going back to Mr. Nystrom: there is one small grammatical correction which I think I should bring to your attention in respect of the motion as it is presently phrased. The second part of the motion reads:
and that, upon favourable decision by both Houses, the Committee shall advertise that the deadline for receiving
written briefs or requests to appear before the Committee be extended to December
I think we should substitute “is extended to December.”
Mr. Epp: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. Nystrom.
Mr. Nystrom: Thank you, Mr. Chairman.
As you will remember, I gave notice of a motion yesterday to extend the time limit for this Committee. The notice of motion was that this Committee report to the House of Commons and the Senate requesting an extension of its final reporting date to February 10, 1980.
I think, in order to save time and avoid duplication of debate, I would like to ask Mr. Epp whether or not he would consider an amendment to the motion he has put forward to change February 6 to February 10. If he accepts that, then we can deal with both motions at the same time and save a considerable amount of time for the Committee. If he is agreed, then I would like to speak to it after he has responded.
Mr. Epp: Mr. Chairman, in the spirit of co-operation that is acceptable to me.
The Joint Chairman (Mr. Joyal): Mr. Nystrom.
Mr. Nystrom: I would like to thank Mr. Epp for that. I would like to make a few points as to why I think the Committee should be extending its deadline. If there is anything we have learnt so far from the witnesses who have appeared before us, and from the national organizations we have seen, including the Federation of Municipalities this morning, it is that they need more time. The group appearing before us today said just before they left the witnesses table, here, that they needed more time to study the resolution properly. The last thing they said to us was that they hoped that the time was extended. “We need more time. It is a very important decision.”
I also recall the Canadian Civil Liberties Association, when they appeared before this Committee a couple of days ago, saying: “We have had not time to prepare a brief,” and they had to give us a verbal submission of their points of view on this very important resolution before us.
So that has been one of the problems we have faced so far with the constitutional resolution we are studying. I would say, out of respect to the national organizations and those many important regional and peoples organizations which are coming before this Committee, that they need more time, and we, as parliamentarians, owe them the courtesty of giving them more time to properly prepare their submissions and to allow them more time, once they appear before this Committee, to be here for more than an hour and a half. You will remember that we have had on a couple of occasions time for only three of four members of this Committee to pose questions to witnesses that were before us.
Now, I would like to plead with the Liberal majority here today, that there is nothing magical about the deadline, December 9. I think we are building a constitution here that is supposed to bring Canadians together, to try and find a
consensus for the future of Canada, and I do not see any reason why we should stick to some artificial deadline such as December 9. I think that has been made very clear by the groups who have appeared before us. I think we have all learned that, and we have learned it very well.
The other matter is this. It is not only the groups who have appeared before us. If you take a look at the long list of witnesses who have now applied to be heard before this Committee—and I have not yet done my count doday: but as of 3:30 pm. Tuesday, two days ago, there were about 84 or 85 groups of people who wanted to come before this Committee to make their point of view known. They wanted to be heard. We only have about 22 or 24 different sessions to go, and that means we would have to have three and a half or four witnesses per session, I repeat, per session, if we are to hear all of those people.
I would like also to remind the Committee that the ad was put in the newspapers of this country only last weekend, and the list of witnesses and the requests to be heard that we have on this sheet of paper are basically a response before the ad went in; and we are now only starting to receive a response to the ad which was in the newspapers.
There are many important national organizations, such as church organizations and others, who have not had time to officially apply to be heard before this Committee and who I am sure would want to be heard and who deserve to be heard in a matter such as the building of a constitution, Therefore, I think, it only makes sense that we should give them that time. I happen to know of some of the problems that the native organizations are having now in trying to bring their diverse groups together to form a common constitutional position, and the one thing they have said to us time and time again is: “Give us some more time. We have gone on for 113 years, why can we not have a couple more months? Why do we have to ram it through so quickly?” Out of respect for them I plead with the Liberal majority across the way to give us that more time.
I think it makes sense that we extend, as Mr. Epp said from November 25 to December 31, the time that people will have to apply to be heard before this Committee; and as I have suggested, it makes sense to extend the deadline from December 9 to February 10 for us to hear those witnesses and study the resolution before us.
The second point I wanted to make is that this resolution is very basic. A constitution is more important than just an ordinary bill, an ordinary budget or an ordinary parliamentary matter. The people across the way are going to say that we have had a lot of time to study the constitution, that we have had many committees, many reports, like the Pepin-Robarts, and so on; but there is a great difference between those and the one we are doing now.
For the first time we have the parliamentary committee considering an actual document in a parliament that has every intention to move to patriate the constitution. We are no longer dealing in hypothetics. It is the real thing. The people of
Canada know that, and have a right to be heard and to participate in the building of their constitution. I think we have to recognize that right.
The third thing is process. There has been a great deal of talk about whether or not the process that is now under way is the proper one. We had an appeal this morning from the Federation of Municipalities that they wanted a constitutional convention; that more people should be involved than just parliamentarians; there should be people from the municipalities; we have had the native people saying that the people should be involved from the Indian and native organizations from the north. The women’s groups want to be involved as others want to be, in building a constitution by the people and for the people of this country.
Therefore, Mr. Chairman, we have to take time to make sure that they can at least have the minimum of involvement by appearing before this Committee.
I do not know if many people noticed this morning in the press that a major poll was taken in western Canada by the Market Information Research Company. They polled some I400 people and about 68 per cent of the people opposed the process that is now going on, according to that poll, and only 3 per cent of the people in western Canada, according to that poll, thought that the federal government should act alone in the unilateral sense.
So I think it is very important, when we are building a constitution, that we should heed some of those concerns, some of those tensions, when building a consensus, and that the process itself is as important in many ways as the substance of the constitution.
We need more time to make sure that we have a more decent and proper process in building the constitution of Canada.
The fourth point I would like to make—and the last one—is that after we have heard the witnesses and from people from across the country and given them adequate time to appear before this Committee and make their points known to us as parliamentarians, we will then need time to go over the resolution section by section to study all the 50 odd sections in this resolution, many of which are very controversial and complex. That is going to take up a great deal of time, just to study those sections. We are also going to need time to study the various amendments which will be moved by, I am sure, all parties around this table; and many of the amendments will be conflicting and controversial, and that is going to be a matter which will take time with 25 members of the Committee.
Then, Mr. Chairman, once we have made a decision section by section, amendment by amendment, we will need time to write the report on each of the sections and to report back to the House of Commons.
I say to you, in all seriousness, in all realism, how can we possibly do all of that by December 9? How can we possibly do all of that in the two and a half to three weeks remaining between now and December 9?
In conclusion I would like to appeal to the Liberal majority opposite, because we might as well call a spade a spade, in that
they will be making the decision as to whether or not we can extend our time; and I wont to appeal to them not to use their majority to ram this through so that we can meet some arbitrary deadline, some artificial deadline, which may not stand the test of time for Canadians, that may, instead of bringing the country together, building a consensus, building a great Canada in the future, be one of the events of history that creates more tension in confederation, and instead of bringing us together, could be possibly one of the reasons for pulling us apart.
So please, do not use your majority to meet some artificial deadline. Use your majority, instead, to help us establish a reasonable deadline for the work of this Committee.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom.
I think Mr. McGrath had a question to put to you. I think previously you had agreed to receive the question.
Mr. McGrath, you have a question for Mr. Nystrom.
Mr. McGrath: Yes, Mr. Chairman. I regret to interrupt Mr. Nystrom. I am glad he is able to entertain this question, because it concerns me. I think the point has to be made—and I will only make it once: that if only Mr. Nystrom and his colleagues had taken this position in the House, perhaps we would not be faced now with a December 9 deadline. If he had voted against the resolution to refer it to the Committee with a December 9 deadline, we would not be in this fix that we are in today. I believe that point has to be made.
The Joint Chairman (Mr. Joyal): Mr. Nystrom.
Mr. Nystrom: In response to Mr. McGrath’s interruption, I wish Mr. McGrath would only go back and look at the records in the House of Commons. He will notice that Mr. Robinson, Pauline Jewett and myself and all our colleagues and Ed Broadbent, voted in favour of a motion in the House of Commons about three weeks ago—I cannot recall the exact date—in favour of extending the deadline of this Committee to February 12, because we felt at that time, as we now feel, that we needed more time to properly deal with the constitutional resolution and the process before us.
The Joint Chairman (Mr. Joyal): Mr. Mackasey.
Mr. Mackasey: Mr. Chairman, I have listened with a great deal of interest to the arguments, particularly of Mr. Nystrom. I think they were very excellent arguments. I think he said that there was nothing magical about the date December 9. I wonder if he is not stating the obvious. Let us look at Hansard of yesterday, although Mr. Nystrom made a lot of other points with which I agree and a lot with which I disagree, but I think that Mr. Nystrom, in his fairness, would not like to leave the mistaken impression that the Liberal Members of this House do not share his concern and passion for a united country, from one end of the country to the other-Canada.
I do not believe any political party here, Mr. Chairman, least of all, certainly not the NDP, have any monopoly on the concern for one country. I do not think there are too many
people serving on this Committee, if any, who do not see a country where there is the ultimate in the way of freedoms, a country where, in reality, and not just simply as a matter of form, Canadians could eventually say, “We want to educate our youngsters in this or that language,” free and unfettered personal decisions—from one end of the country to the other. I do not think there is one member of this Committee, Mr. Chairman, who does not see the logic and the propriety of any Canadian being heard in the courts of the land, not only in English or in French, but if his language tends to be another one, representing or reflecting his background as a new Canadian, that every opportunity be provided in some cases for him or her to be heard in the appropriate language.
But, Mr. Chairman, that is not what we are discussing this morning. We are, in fact, discussing a constitution, amendments to the constitution; few amendments, really. I do not pretend for one moment that when this resolution is adopted it would reflect the standards that I think are needed in this country. I happen to, perhaps, bore a few members by repeating that my views on this constitution reflect my background and upbringing, reflect not only the views of the people of Lincoln which is very multicultural, as compared with the riding I used to represent, but they do reflect the struggle of the French speaking Quebeckers for equality of opportunity.
I might say—and this is relevant, certainly within the framework of the statement set out by Mr. Nystrom—that when I arrived here in 1962—I hear Mr. Crosbie laughing: fine, Mr. Crosbie, you were still in short pants; you reflect it by your intervention; but I want to say that we would not be discussing this in two official languages; we would not be reading documents in two official languages; we have come a long way, and to infer that the majority of this Committee, by denying or voting against this particular amendment, is somehow against bringing in a constitution which reflects reality and what I think is the desire of the overwhelming majority of the people of the country, is wrong and is not the right tactic that Mr. Nystrom is using.
When Mr. Nystrom says that, in essence, December 9 is not carved in granite—that reflects my way of saying what he has said—he is only expressing the views that were expressed in the House of Commons yesterday by the House Leader. It is amazing how we can just totally forget what was said in the House of Commons by Mr. Pinard. He said that he wanted the debate to be thorough, reasonable and as fair as possible. He said:
I repeat that, on the contrary, we are ready to extend the deadline reasonably.
That is the view of the Liberal Party as expressed by the House Leader, whose responsibility it is in the House of Commons to reflect the views of the Liberal party.
Therefore, I repeat the whole thing, because I do not want the people of Canada to think that our position is one of December 9 at all costs, an inference that Mr. Nystrom read into it quite unintentionally, I am sure.
Mr. Nystrom: May I say. . .
Mr. Mackasey: I did not interrupt Mr. Nystrom in his eloquence, passion and sincerity.
Mr. Pinard said at page 4849, in discussion with Mr. Clark—and I repeat:
on the contrary, we are ready to extend the deadline reasonably.
That is precisely what the House Leader should normally be discussing during the meeting suggested by the Leader of the New Democratic Party.
Now, what we have, on the one hand, is the Leader of the New Democratic Party. Mr. Broadbent, carrying out his functions quite properly, requesting, debating in the House of Commons, the need for a meeting of the House Leaders to discuss the extension of the December 9 deadline.
We have the House Leader of the Liberal Party saying, “Yes, we think that this could possibly be extended under certain circumstances or conditions.” Nobody wants to use closure; nobody at the same time wants to see the parliamentary procedure astutely used to prevent the passage of this resolution within a reasonable length of time; and when Mr. Broadbent makes a request that the House Leaders meet to discuss this issue, the response from Mr. Pinard was to agree to that, and also, as a conciliatory gesture, to make it very clear that he would approach these particular hearings with an open mind as to whether or not December 9 should be extended.
I think I am trying to be very objective, and I would not make that statement if I did not have in front of me a copy of Hansard of yesterday, which clearly spelled out the request by the leader of the New Democratic Party for a meeting, acquiescence, in that request by our House Leader, and furthermore, a statement by our House Leader that under proper circumstances, under a reasonable attitude on the part of all the House Leaders under a firm commitment by all House Leaders that we must bring an end to this procedure which has thwarted the best minds of the country for half a century, that the house leaders said, in effect, that if Mr. Broadbent and Mr. Baker could convince him and it is Mr. Pinard’s responsibility to be convinced; he has that right to express some reservations.
What he said in effect yesterday, that if you can convince me that we can extend the deadline in Committee, but at the same time, come to some agreement acceptable to all parties as to when the total package will be completed. It has to be completed by the end of February, it has to be completed by the end of July, it has to be completed by the end of September, some agreement.
When Mr. Nystrom talks about the problem of some of the witnesses, I can appreciate that problem, This is why, appearing reactionary a month ago, I suggested that we word our ad for it in such a way to make it clear that could not accommodate all people.
But I am sure some members of the Committee on the last day of the procedures in this Committee can quite probably get up and name all 25 other groups that we would like to hear; reality being that of course we cannot hear all groups.
When Mayor Flynn mentioned quite astutely today that he did not have enough time, calling a spade a spade. the main reason that Mayor Flynn was here today at all was to take advantage of this forum, quite legitimately, to advance the causes of the municipalities in general to deal primarily with the present constitution. But in any event, to accommodate the municipalities we would have to extend our deadline until after June 6 unless of course they want to rely strictly on the recommendations of the directors.
The Joint Chairman (Mr. Joyal): Excuse me, Mr. Mackasey.
Mr. Crombie, on a point of order.
Mr. Crombie: Mr. Chairman, I hesitate to interrupt the remarks of Mr. Mackasey but I think for anyone who had the opportunity to see Mayor Flynn, who has heard Mayor Flynn, and indeed, who knows Mayor Flynn, would also know that Mr. Mackasey unnecessarily impugning his integrity on the matter and I think he ought to at least offer an apology and withdraw his remarks.
Mr. Mackasey: Well, my relationship with Mayor Flynn goes back a long time too on a personal basis.
Mr. Crombie: Then you ought to know.
Mr. Mackasey: Well, I also know that you have made your point. Now let me make mine.
Mr. Crombie: Well, why do you not offer him an apology?
Mr. Mackasey: I would gladly apologize if I know what I am apologizing for. What I said quite clearly was that Mayor Flynn’s testimony, if you will look at it, inferred that he is here today with no preparation, or very little, because of the deadline. He said that quite clearly.
His brief, nine tenths of it was a brief that he has presented in the past; no reflection on Mayor Flynn that he would take advantage of this forum to point out the existing constitution and makes it very difficult for municipalities to exist. I served on a municipality, not with the same distinction as Mayor Crombie, I was only a simple little Irish politician on a small community’s council.
Mr. McGrath: There is no such thing as . . .
Mr. Mackasey: If the members often feel that their only contribution is satire and ridicule, be it, they are experts at it, because for part of the time they have nothing else to offer.
Now, I want to come back to really what is important; the amendment.
I ask members often, why February 6, why February 9, 10, and you could see the ease with which the date was changed this morning.
Why not March 14, why not March 17, St. Patricks Day, why not June sometime? My point, Mr. Chairman, and I would appreciate if I could make, it is that at the same time as Mr. Broadbent is asking the House Leader, Mr. Pinard, for a meeting and based on what I read, a decision that was agreed to, a request that was agreed to, at the same time, I presume such hearings should be going on, we are faced here with an
amendment designed—I will not say “tilt”, but find a word that does not upset the ex-Mayor of Toronto but—let us say to persuade those deliberations in one fact or another.
The important thing this Committee should be doing is getting on with the witnesses, understanding full well that in the House of Commons, the House Leaders have seized this situation, have agreed to a procedure, are meeting, and meeting from the premise expressed by our House Leader that December 9 is flexible.
Now, I would ask people watching this if that is unfair. Flexible, but linked to a reasonable time period for all three phases of this particular resolution, including what transpires when we finish our work and our findings go back to the House of Commons. That I think is perfectly reasonable, that I think the people of Canada will understand.
What I have found, Mr. Chairman, which relates to this, one theme that is coming through for many others, one theme that is coming through is that people are tired and fed-up. As much as this is a priority with people, they are a little tired of constitutional conferences and they are saying, let us get on with it, get it over with, we agree with the fact that we need mobility. The construction worker in Ontario is concerned that he can no longer work in Quebec, he wants us to do something about it.
Yesterday we heard the Chamber of Commerce express the same opinion. Now the Chamber of Commerce yesterday—we have talked about Mayor Flynn’s contribution. The Chamber of Commerce stated categorically that it is hurting business because periodically we are at an impasse.
They went so far as to suggest that when that impasse becomes apparent as it has, for instance, in the field of natural resources, they expect the federal government to move in and exercise the authority which they feel a strong central government should have in a federal system.
When I asked the spokesman from the Chamber of Commerce, did that reflect the views of the Chamber of Commerce in all the municipalities and hamlets of the west, he said absolutely. I put great faith in the views of the Chamber of Commerce because they are closer to the people than many of us, they exist in every little community, and I mean every little community. Not the one where you get an Air Canada plane and drive 300 yards to talk to a local organization, but Chambers of Commerce where you have to go up 150 miles from the main route to talk to them. They are close to the people.
When they came here yesterday to tell us that they wanted us to get on with the job, that they wanted the central government to assume its responsibility, by inference it is saying to the Parliament of Canada, bring this great debate to an end and get on with what has to be done.
Now, I am just saying, Mr. Chairman, that we will vote against most amendments.
Some hon. Members: Shame, shame.
Mr. Mackasey: Shame is fine. And we will vote against them for one fundamental reason.
Mr. Nystrom, you are a rising star in your party with great ambition and you have done a very . . .
An hon. Member: Do not be so patronizing.
Mr. Mackasey: I am just reflecting your intervention. I did not intervene with yours and if you do not want to throw them back, then you just be a nice little young man.
I want to say, Mr. Chairman, that I am quite prepared to vote against these motions for one reason, and one reason only. If the House Leaders seized the situation yesterday, there was a legitimate request made by Mr. Broadbent, and in conclusion I make this point, and by Mr. Clark, that the House Leaders get together, take into consideration the number of witnesses who want to appear here, the time they need and I think Mr. Pinard inferred, I am sure he has inferred in his answer, that under certain circumstances the December 9 can be extended. My only point here, Mr. Chairman, is that is a decision for the House of Commons and for the House Leader and not this Committee and we are wasting valuable time which could be spent hearing witnesses that are outside wanting to be heard.
Some hon. Members: Hear, hear.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey.
The Honourable Senator Tremblay.
Senator Tremblay: Mr. Chairman, I do not know if everyone was under the same impression as I, but up to the very last minute, Mr. Mackasey kept us all in suspense with this beautiful cliff-hanger because we were all wondering where he was going to wind up.
He has shown us that on the government leaders side in the House of Commons there is a great open-mindedness, great flexibility and, all of a sudden, after a very long demonstration, an opening that was being made for us to give him the fruit of our experience, and if the conclusion of our experience to date in this committee was going the direction of an extension of the schedule, then that proposition or request would be very favourably looked upon. And here we are, after this demonstration of the authority’s open-mindedness, of the House of Commons leader’s open-mindedness, the conclusion is there, like a ton of bricks. We are going to vote against the motion we are entertaining and which, fundamentally, is posited on the hypothesis that this open-mindedness which Mr. Mackasey so well explained to us does in fact exist.
As that opening is now there, I believe it is our duty, and it is a very simple one, that we have a certain experience developed over two weeks of sitting in this committee. This experience has shown us very clearly, based on the material already presented and representations already made that for what is foreseeable in the future, our experience has shown us very clearly that this date of 9 December does not hold water in view of our past experience and the facts we already know.
So that is the direction of that motion, finally, that we are transmitting to the authority and powers that be above us and
who have establihed this date of 9 December, I imagine that with the facts and data they had at the time and in view of our present experience, they would be ready to modify that. It is our duty to transmit the motion’s message, the fruit of our experience and it would therefore be interesting to know what the results have been so far.
Our experience shows us, on the one hand, that the agenda for hearing witnesses has not only not yet been agreed upon or even established but that it is not even possible to immediately establish it in any definitive way because we do not yet know how many witnesses will want to appear before us and it is quite clear that unless we take very arbitrary decisions such as, at some point, deciding to hear only 25 or 30 witnesses because of time constraints which will not allow otherwise and therefore have to refuse all others, unless we take such an arbitrary decision, it is not possible, presently, to stay within the time limits which have been imposed upon us, It seems to me that is the first result of the facts we already know and the experience we have had in the last two weeks.
On the other hand, when we try to fit witnesses into time slots that are far too short especially if we have national groups, we have seen time and again that we lack time to explore both to the satisfaction of the witnesses and the members of the committee the opinions that the former are quite willing to make known to us.
That, then, was dealing with the witnesses, It seems to me that on that point we have managed to come up with incontrovertible proof that the date of 9 December will just not do.
And now, what about our own discussions as a committee where we will have to form our opinion and make decisions before coming up with the recommendations we must make? I really believe that we will not be able to do that just by snapping our fingers. We will need some time to think about it.
It seems to me that whether we see things from the viewpoint of the witnesses or from the viewpoint of our own discussions, the date of 9 December does not hold up. It seems to me that is the conclusion we must draw from our own experience and that it is our duty as a committee to inform both Houses of the result of our experience so that their own decisions might be made with the proper facts at hand and we know that insofar as that is concerned, Mr. Mackasey has proven that there is much flexibility, much open-mindedness.
So it would seem to me that the debate here, in this committee, on the motion we have before us now must bear only on what comes from our own experience and points in the direction of the motion put forth by Mr. Epp.
We should then ask ourselves if the date of 10 February is the only practical one, the most plausible, the most reasonable. I imagine that no one will be taking any kind of iron-clad positions on that; we could just as well be debating the end of February as a date. Personally, I think that based on the facts that we have at our disposal we can at least say that the date of 10 February seems to be reasonable and that, if we present a request to that effect to the powers that be in both Houses,
that request will appear to be equally as reasonable all the more in view of the fact, as has been said several times already, that attitudes have already been seen to change in the House of Commons itself, in particular, and that there seems to be a certain readiness to accept that sort of request.
I think that what I have just said points clearly in the direction of a favourable vote on the motion. There are therefore no surprises in the conclusion I will be drawing, I will certainly vote in favour of the motion.
The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.
Senator Goldenberg: Thank you, Mr. Chairman.
There are two propositions made by Mr. Epp: one, the extension of the deadline to February 10; second, the referral of the matter of time allocation to the steering committee. On the latter point, I agree with him, I support him. I do not propose to discuss dates or deadlines. What I would like to do is look at what has transpired here in the two weeks that we have been meeting. Since these proceedings began, we have been met with one point of order after another and resultant continual procedural delays.
Mr. Fraser: And also television.
Senator Goldenberg: Exactly. I wonder, Mr. Fraser, how this impresses the public which is presumed to watch us on TV.
Mr. Fraser: A point of order, Mr. Chairman.
Senator Goldenberg: I do not think the public is interested in points of order.
Mr. Fraser: Mr. Chairman.
The Joint Chairman (Mr. Joyal): The Honourable John Fraser on a point of order.
Mr. Fraser: My good friend Senator Goldenberg asked, how does television impress the public. I can assure the Senator that if the feedback I am getting from British Colombia is any indication, the public is very pleased to see television here and if it had not been for our points of order and our motions, it would not be here.
Senator Goldenberg: I do not question what you have just said, but what I have said, Mr. Fraser, is that I wonder how interested the public is or how impressed the public is by continual points of order and procedural delays. If these delays continue . . .
Mr. Fraser: With the permission of the Chairman . . .
The Joint Chairman (Mr. Joyal): Order, please.
I understand that everybody around this table is interested to know the opinion of each member fully and then debate. I think it has been our way of doing it. to listen to what each one of us has to say on the very fundamental issue and the Chair has always entertained openness, and let members express freely what they have in mind. I think that Senator Goldenberg is expressing an opinion and if the honourable member has another opinion which he is entitled of course to have, I
think I will recognize him in due time and give him all the opportunity to express it and I will receive it.
So, if he wants to agree with me, we will listen to Senator Goldenberg and then I might turn to him for that kind of a . . .
Mr. Fraser: Mr. Chairman, may I say that I think I speak certainly for everybody in the Conservative Party and the NDP, that we have the highest respect for the way both Chairmen have conducted the proceedings, but my only point is that Senator Goldenberg makes his point by asking questions and I cannot resist the temptation to answer.
The Joint Chairman (Mr. Joyal): So if Senator Goldenberg wants to keep his questions for the end of his statement, then I would recognize Mr. Fraser in order for him to giver an answer. So would you proceed, Senator Goldenberg.
Senator Goldenberg: For your information, Mr. Chairman, Mr. John Fraser and I are very old friends. He always listens to me, However, I was not the one who mentioned TV, it was Mr. Fraser who mentioned TV and that gave me the opening.
Mr. Fraser: Well, you bit.
Senator Goldenberg: Now, I was referring to constant points of order and procedural delays and I just want to suggest that if we continue in the same vein, and we have another distraction this morning, if we continue in the same vein I doubt whether either February 6 or February 10 would be a realistic date.
For example, having agreed on an agenda and a time allocation of an hour for each group of witnesses, which is not unusual in hearings before Committees, before Royal Commissions, the proceedings are interrupted with further similar arguments. I think I can safely say that if these delays had been avoided we could have heard quite a number of additional groups of witnesses.
Then there is the matter of repetitive questions and questions on matters completely unrelated to the resolution before us. I do not want to criticize some of the briefs that have been submitted but all honourable members will agree with me that a number of them were not prepared with a view to being questioned on this resolution. I heard some of those briefs over the years, for your information I was counsel for the Canadian Federation of Municipalities and its two predecessor organizations. I prepared their first brief in 1936.
Now, there is reference made to the number of witnesses who want to be heard. We were told that there are 80 or 85 groups who want to be heard. Now, let me point out to you that in 1978 there was a special joint committee of the Senate and the House of Commons on the constitution. It received 250 briefs but it succeeded in dividing the witnesses into 20 or 25 groups with one or two spokesmen for each group.
I think we should welcome briefs, I welcome briefs, they are essential, but we have to draw a distinction between profes-
sional groups and individuals who speak for themselves insofar as appearing before the Committee is concerned. Mr. Beatty tried to pin me down the other day and I was amused, I did not have a chance to answer him because the chairman stopped me, Mr. Beatty mentioned certain groups who wanted to appear and he chose the Anglican Church and the Presbyterian Church in Canada. Well, knowing that the Canadian Jewish Congress was going to appear did he think I would say that we should not call upon the Anglican Church or the Presbyterian Church in Canada? They are national groups and they should be heard. However, I repeat, let us draw a distinction between representative interest and individuals.
Some of you may have seen a brief by an individual submitted to us, a one page brief in which he gives his address and says that his constituency is St. Andrew and St. Paul, and in brackets he says “very saintly”.
Now, on the motion before us, I think it fails to recognize the urgency of the situation. All parties promised constitutional revision to Quebec during the referendum campaign, and let us note that there were four by-elections in Quebec this week and that the Parti Quebecois fought those elections on the constitutional proposals of the government and was defeated in every one of those constituencies. So the urgency of the situation as far as Quebec is concerned remains.
Mr. Mackasey has pointed out what the Chamber of Commerce told us yesterday, that is was urgent for business that this matter be disposed of as soon as possible. I said the other day that if Mr. Epp has a problem with the deadline, he should be raising it not with the Committee but with his House Leader who can always speak to Mr. Pinard. We have now heard what transpired in the House of Commons yesterday in answer to a question by Mr. Broadbent, where Mr. Pinard said: I intend to meet with the opposition house leaders as soon as possible, whenever it is convenient for them, and this was on the very matter before us now, I suggest, honourable members that we leave the matter to them and in the meanwhile we proceed with a more expeditious hearing of witnesses.
The Joint Chairman (Mr. Joyal): Thank you, senator Goldenberg.
I now recognize honourable David Crombie.
Mr. Crombie: Thank you, Mr. Chairman.
I have not yet intervened on any matter of procedure because I thought the point of view, certainly from our side, was being done exceptionally well by Mr. Epp, but I am prompted to comment particularly in relation to remarks made by Mr. Mackasey and some remarks made by Mr. Goldenberg.
The reason we do intervene, Mr. Chairman, from time to time in relation to matters of procedure and points of order, is in order to ensure the work of this Committee is free and open and allows Canadians to come before it and make their points
of view known. In the debate in the House, in which closure was imposed, a number of spokesmen, but including the Prime Minister, indicated that if we could only get it out of the House and into Committee there would be opportunity for Canadians to be heard. That was the reason and the justification for the closure that he offered in the House. We therefore raised points of order in the early parts of the session, Mr. Chairman, in order that we could get television and radio so that it would be a free and open forum for Canadians. Members of the Liberal Party opposed that on this Committee, Mr. Chairman, and we had to keep on getting points of order until finally their own party in the House agreed to having radio and television here.
The second part to the promise that Canadians will be heard, is why we are raising the points of order now. There is good and sufficient reason why we want to listen to national organizations who come before this Committee. The reason, Mr. Chairman, is that we learn so much about how the resolution is going to affect them and the people they represent. There is not a member of this Committee who is not impressed with the presentation made by the Commission of Human Rights. There was not a member of this Committee who was not impressed with the presentation made by the Commission for Languages. There was not a member of this Committee who is not impressed with the presentation the other morning from the Canadian Civil Liberties Association. The Canadian Civil Liberties Association indicated, Mr. Chairman, that if the Charter of Rights is not changed from what we have before us, then they not only oppose it but they would rather have what we have now, which is no charter of rights in their view, it is so badly written. The Commissioner of Human Rights indicated that it was seriously defective, to use his words.
Now, we learn, and we went through each one of those sections, the Canadian Jewish Congress wants to change approximately 65 percent of the 29 sections of the charter. Now, those are useful things to learn. Canadians do have an interest in having the constitutional changes done urgently, as Senator Goldenberg suggests. They have an even greater concern, Mr. Chairman, that they are done well because it is going to be here for a long, long time, a hundred years or better, and it is wise that we listen to the people who are going to be affected.
Mr. Epp’s motion, Mr. Chairman, is not something dreamed up by the Conservative Party or dreamed up by the New Democratic Party. We received a request from a number of people to have the date changed so that they can prepare themselves to come before this Committee with the same kinds of advice that we received from the Civil Liberties Association, the Canadian Jewish Congress, the Human Rights Commissioner and so on. We have this afternoon members of the two Status of Women Groups. The request that Mr. Epp is trying to respond to, and it is worthwhile reminding you, Mr. Chairman, who we are talking about, who would like to come before
the Committee, it is not people who are simply on a hobby horse of their own, and it is these groups:
The Alberta Women for Constitutional Change; The Anglican Church of Canada; The Canadian Association of Adult Education; The Canadian Association of Schools of Social Work.
Section 15, they are very interested in Section 15.
The Canadian Conference of Catholic Bishops, The Canada West Foundation,
The Coalition of Provincial Organizations of the Handicapped, also interested because this charter does not include protection for the handicapped, that is why they are coming and they want to be heard.
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; The Presbyterian Church of Canada; The Union of British Columbia Chiefs; The Social Planning and Research Council of British Columbia.
I could go on. They are asking that the date be extended until February and have the opportunity until the end of December to put in their brief. I venture to say that they have as much to offer us in terms of advice as the Commissioner of Languages, the Commissioner of Human Rights and the Association of Civil Liberties.
It is a constitution which Canadians are going to have for a very long time. Urgent, yes. Well done, yes. And there is not one person in this Committee who can say honestly to them selves that the resolution before them is acceptable in the form it is written in. To use the words of Mr. Borovoy, Executive Director of the Canadian Civil Liberties Association, and also supported by Mr. Clayton Ruby in a letter in the same connection, the current charter of rights before us now is useless in some cases and dangerous in others.
Professor Brown of Carleton University argues that the 29 sections of the charter before us right now is one which restricts, as opposed to expands, rights and increases the power of government over individuals. Now, that is why Canadians want to come before this Committee and it is not good enough as Senator Goldenberg suggests, that we simply ask them to send it by mail, send in a brief. You learn something from the give and take of dealing with people and that is why we have it in Committee session.
The Prime Minister, I suggest, Mr. Chairman, promised no less, and these people who are asking for the extension of the deadline ought to be heard and that is why I hope, Mr. Chairman, that the Liberal members of this Committee will accede to that request because they may find themselves in the same situation as before when they did not agree with an open
forum, they voted against radio and television and had to be reversed in the House. The House of Commons, I am sure, are going to find a way in which Canadians can be heard before this Committee despite the opposition of the Liberal members opposite.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Crombie.
Mr. Robinson has the floor.
Mr. Robinson: Thank you, Mr. Chairman. I would like to make a few points both in response to comments that have been made particularly by members opposite, and also some additional points which perhaps have not been made yet.
I would like to start by responding to Senator Goldenberg, who suggested that this Committee has been distracting itself with points of order and I think his words were that this particular motion was simply another distraction. Well, Senator, through you, Mr. Chairman, we are not talking about a distraction here, we are not talking about a point of order on some esoteric subject, we are talking about a fundamental question of the right of Canadians, not just individuals, but groups to be heard on the constitution of their country and to suggest that this is somehow a distraction, I believe, is seriously downplaying the importance of this issue. Senator Goldenberg has come prepared on several occasions with texts from which he has quoted so I assume that he was not prepared just to deal with distractions, he was prepared to deal with serious issues. indeed the kind of issue which is being raised this morning.
Mr. Chairman, we have only heard so far from perhaps four or five groups but we have also heard in writing from many other groups. We have heard that these groups need more time, and there is nothing surprising about that, there is nothing shocking in suggesting that particularly a national group in this great country of ours, stretching from one ocean to another, that national groups need some time to come together through their boards of directors, to study the resolution properly and to formulate a position. That takes time, Mr. Chairman, and that time is what this motion is asking for.
Now, it has been said that there has been discussion in the past about a constitution, about changes to the constitution, Bill C-60 and so on. Well, as has been pointed out already this document is not just a theoretical document, it is a document which, if it is passed, will shape the future of this country and surely, Mr. Chairman, it is important that we give this document the kind of serious study that this motion is suggesting.
We are not talking about an indefinite extension of time, we are not talking about some great filibuster, we are saying that we need another couple of months to make this process work. Why are we saying that? Well, some of the arguments have been made already and there are others. One of the arguments that I would suggest is an important argument on this motion, Mr. Chairman, is that the document that we have before us today is a flawed document. It appears, Mr. Chairman, to have omitted a number of very significant elements. Frankly, in the rush to put the document together, other elements have been sloppily drafted.
I need only point to a couple of examples. Section l, to the great surprise of the Deputy Minister of Justice we saw that in the French version of Section I there is no reference to reasonable limitations on the clause herein. It has been rushed together. A fundamental concept of criminal justice in this country, the concept of trial by jury in the case of serious offences is not even found in the document and when that was raised with the representatives of the Department of Justice they shrugged their shoulders and said, well, we assumed it was in there. We assumed it was in there.
Well, Mr. Chairman, why this great rush? Why this headlong rush to the December 9 deadline? We know that there are many groups, there are womens groups, there are native groups, there are civil liberties groups, there are representatives of provinces and so on that want to have time to formulate their position. The Government House Leader confirmed yesterday, and we accept this, that the government is not wedded to any particular date to have this package finally returned to Canada. So why is it unreasonable to suggest an extension of the deadline, first for receiving submissions and secondly, a deadline fixing another deadline of February for the Committee to wind up its work.
The Prime Minister has said, Mr. Chairman, that what we are talking about here, particularly in the case of a charter of rights, is a document which is so important, which is so essential that he believes it has to be included in the constitution at this point because we would never get the charter of rights if it were up to the provinces in this country. Well, Mr. Chairman, I happen to believe there is a good deal of truth in that but if that is the case, how much more is it the case that if the document comes back as a flawed document, we are going to be stuck with that document, not just for a few years but perhaps for many decades.
We have spent some time on a bank act in this parliament and in previous parliaments. We spent some time on a bank act which is supposed to last for ten years, a bank act which was in Committee for months and months and months. Mr. Chairman, how much more important is a charter of rights and a constitution for this country, how much more important is that than a bank act, and for heavens sake, why can we not at least give the same amount of time to the charter of rights in the constitution of this country that we are giving to a document that sets out how banks are to operate in this country?
Mr. Chairman, I held a meeting in my constituency in British Columbia about two weeks ago on very short notice, perhaps two or three days notice, and over a hundred people crammed into my office and they are concerned about this package. They care about this package but what they asked. and what they asked over and over again, is: what is the rush? What is the rush? We agree that the time has come for a constitution in Canada, but who is determining that December 9 is the magic date upon which closure is invoked on this Committee? Who is determining that and whose timetable is deciding on the future of this country through a constitution?
Mr. Chairman, I could not answer that question, and I have not heard the honourable member for Lincoln, Mr. Mackasey, or the single member from British Columbia on the Committee, Mr. Austin, or Senator Goldenberg or any of the other members opposite answer that simple question; what is the great rush?
Senator Goldenberg has suggested that perhaps it has something to do with a promise that was made by the Prime Minister to the people of Quebec that there would be major constitutional change, and of course that promise was made but, Mr. Chairman, the document before us has been opposed, not just by one party in Quebec but the document before us, which is allegedly fulfilling the promise of the Prime Minister of this country, has been opposed by the Liberal Party in the Province of Quebec so how on earth can it be suggested that somehow by rushing this charter of rights through, by rushing this document through we are fulfilling a promise that was made to the people of Quebec when all of the parties in the Province of Quebec have, for one reason or another, opposed the particular package before Parliament now.
Mr. Chairman, if I may finish and then if the Senator wishes to ask a question I would be pleased to . . .
Senator Goldenberg: It is not a question, it is a correction.
The Joint Chairman (Mr. Joyal): I would suggest the member stick to our agreement to let one speaker complete. I am quite sure Mr. Robinson is coming to an end now and I will recognize Senator Goldenberg if he wants to add something to what Mr. Robinson has to say.
You might continue, Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman, I will not be much longer.
The motion, as I say, asks for a couple more months to permit groups and individuals to make submissions on this important question, to decide what are the appropriate amendments and I believe that we have to look at the reality of what is happening here, the political reality of what is happening here and the political reality is this: the deadline will be extended, we know that. The government has said that the deadline will be extended beyond December 9, that was made quite clear yesterday. Well, is it so wrong, it is so improper that this Committee, this Committee which has been hearing witnesses, this Committee which knows the number of witnesses who want to appear, which has some indication of how much time it takes to carefully examine each witness, that we make a recommendation, we make a suggestion to the Government House Leaders as to what is an appropriate extension?
That is all this motion is doing, Mr. Chairman. It is suggesting that an appropriate deadline, based upon the collective wisdom of this Committee, would be February 10. There is nothing wrong with that.
But what kind of games are being played here by suggesting that, “Well”, as Mr. Mackasey said, “we know there will be a deadline, but leave it up to the Government House Leaders”. I suggest this Committee has a mandate to tell the Government
House Leader and the other Leaders in the House exactly how we feel on this important question.
Mr. Chairman, I appeal to them, to the Liberal members opposite to exercise that independence which, occasionally, has flared up in this Committee. Mr. Mackasey said that his mind was made up, and that speaking on behalf of the members on his side, “We have made our decision. We are opposing this motion”.
Mr. Chairman, I appeal to the Members opposite, and to the single Member from British Columbia to consider whether he is representing the people of British Columbia when he votes against this motion, if he votes against this motion; I challenge him to go back to British Columbia and tell the groups and individuals in British Columbia that December 9 is an appropriate deadline and that February 10 is not an appropriate deadline.
Mr. Chairman, I will close by saying that we, in this party have approached this process, this document in a constructive and positive spirit. We have said that there have to be changes. There must be important changes in areas such as native rights, women’s rights and the Charter of Rights, and the amending formula among others.
We have attempted to be constructive and to recognize the reality of what is happening, that we have a document. We are not determining the timetable. But it is up to this Parliament to get the best possible package for the people of this Canada. But, Mr. Chairman, our good faith has been sorely tested as a party. Our good faith has seriously tested by one series of events after the other, by the invocation of Closure, by the flip-flop on television, by the insulting remarks of the Prime Minister to Western Canadians suggesting that they were being “hysterical”; and now, Mr. Chairman, we will look at the attitude of the government on this important question because if they are serious, if they are serious about hearing the input of Canadians, they are going to look at a significant extension of time.
Mr. Chairman, we in this party will not take part in any railroading; we will have nothing to do with the railroading of a constitutional package; we are getting off the train if this package is railroaded.
Mr. Chairman, it has to be understood, and understood very clearly, that we are talking about the future of this country, and about the Charter of Rights of the constitution—that it is too important to be railroaded through Parliament.
Mr. Chairman, I appeal to Liberal Members opposite to consider their position and to vote in favour of a motion which states very simply: “We are prepared to listen to Canadians”.
Thank you, Mr. Chairman.
The Joint-Chairman (Mr. Joyal): Thank you, Mr. Robinson.
Mr. Goldenberg had requested permission to respond to a question, to an observation by Mr. Robinson.
Senator Goldenberg: I just wanted to make one correction. Mr. Robinson referred to what I said about Quebec, and he said that the three parties in the Quebec Legislature opposed this resolution.
I think I should point out that the Liberal Leader spelled out each of the sections of this resolution and said that he supports them. What he objected to is the process. He objected to unilateral patriation. Yes, but I just wanted to point out that he approved the resolution, but not the process.
The Joint Chairman (Mr. Joyal): Mr. Robinson, there were two speakers who wanted to answer your statement. I recognize Mr. Austin, and then I will recognize you after I have recognized Mr. Beatty. I think it is only proper that the exchange be open to as many members as possible.
Senator Austin: Mr. Chairman, I would like to take the audience, which is not composed of members of this Committee, into our confidence as to what is happening here. What we are involved in is the politics of procedure. We are not involved in getting on with the witnesses. We have ready to appear before us since 10:30 p.m. the National Action Committee on the Status of Women. We have heard a number of Opposition members of this Committee tell us how vital is the evidence of the people who are seeking to appear before us, Obviously, allowing the important opinions of witnesses to come before us is secondary in their objectives to playing procedural politics with this Committee.
As far as I am concerned, the House Leaders in the House of Commons—and I might add, in the Senate—are fully vested with the issues that are dealt with in the procedural objections by the Committee members opposite.
It really disturbs me to see that while they well know that the negotiation on procedure and on timing belongs to the level of House Leaders, they want to continue to delay the real work of this Committee which is getting down to the substantive consideration of the important constitutional issues which both the House and the Senate have placed before us.
I would suggest, therefore, that as rapidly as we possibly can, we allow the House Leaders, which is the appropriate forum for this particular discussion, to do their work, and if there is a difficulty in agreement amongst the House Leaders, that it be argued where it belongs, and that is in the House of Commons and the Senate, and we be allowed to get on with hearing Canadians who have things to say to us about this very important constitution.
Now, I want to make it very clear, because there has been, in my view, probably unintentionally, a substantive misrepresentation of the quality of the evidence we have heard.
We have heard Mr. Fairweather tell us, I believe, that this constitution is a noble document. He has told us that it has defects, but he has also said, yes and I think it is one of the great pragmatic maxims that “the best is often enemy of the good”; and I believe we have heard all the witnesses here, with one exception, tell us that this is a substantial advance on the rights and privileges and responsibilities of Canadians. We need an advance with respect to vested rights for all Canadi-
ans, both social rights, economic rights, and of course legal rights.
The Opposition Leader, in my own province of British Columbia, as I have made clear and put on the record, has argued—and I agree with him—that a Charter must be entrenched, that he would rather have an entrenched Charter of the kind contained in this joint resolution than to be without. He believes—and I believe—in the building of these rights, based upon the document before us.
Now, Mr. Robinson has—and I am emotional about this, and a little tense too—argued that in some way the people of British Columbia are not being served by what is happening in the House, the Senate and in this Committee with respect to the joint resolution.
I have quoted to him the opinion of Mr. Dave Barrett as to what we should do. I see he does not agree with Dave Barrett. That is quite an interesting thing to know, because I think Mr. Barrett is speaking for a very substantial opinion of British Columbia, which I have said liberal opinion concurs in on the entrenchment of rights; obviously, Mr. Robinson is speaking for himself.
As to his question whether I can justify voting against this procedural resolution, you bet I can.
I believe we should get on with the witnesses and let the House Leaders do their job and find out whether they can settle this problem. I will tell Mr. Robinson as directly as I can—I respect him, I think he is an able and serious person—I believe that the majority of people in the province of British Columbia believe that the constitutional debate should be settled very quickly and that we should get on with the serious economic and social problems which Canadians have to tackle.
There is, and has been, adequate time in the minds of people in British Columbia to deal with these issues, and I think they want us to get on with the job.
So, in conclusion, Mr. Chairman, I would say let us get beyond the politics of procedure which we have heard this morning, and I would suggest that the question be put and we get on with the business of this Committee.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Austin. Miss Campbell.
Miss Campbell: On a point of information, Mr. Chairman: I am just wondering if the witnesses should stay. If we are going to clear up this matter—which I think should go back to the House—I am not sure whether the witnesses should be here now; maybe they should be allowed to go for lunch.
The Joint Chairman (Mr. Joyal): With the consent of honourable members of this Committee, I would like to read a note I have just received from Mrs. Lynn McDonald, President of the National Action Committee on the Status of Women:
The National Action Committee on the Status of Women has been sitting here since 10:30 a.m. when we were scheduled to appear.
When will we be on? Please note we are an out-of-town group that cannot hang around Ottawa.
I think it would be polite and courteous to inform our witnesses when we intend to hear them this afternoon so that they could take proper arrangements to go for lunch.
Mr. Epp: Mr. Chairman, that is a legitimate request. It would be my suggestion that this matter be resolved and that we then hear the witnesses at that time.
The Joint Chairman (Mr. Joyal): I notice that it is 12.05 p.m.
Mr. Epp: Mr. Chairman, they were scheduled for 10:30 for one hour. It would be my suggestion that as soon as this matter is resolved—and within a matter of minutes it could be resolved—we could hear them at that time.
The Joint Chairman (Mr. Joyal): Mr. Mackasey.
Mr. Mackasey: Mr. Chairman, Mr. Epp made a very conciliatory gesture; why not proceed with the motion from here on. I am quite prepared to proceed personally.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Mackasey.
Mr. Nystrom: I would suggest Mr. Chairman, that you might want to consult with them and see whether or not they would prefer to begin their testimony right away, or whether or not they might prefer to wait until after lunch.
The Joint Chairman (Mr. Joyal): I understood from the note that they would be ready immediately instead of waiting around Ottawa. Mrs. Lynn McDonald could consult with our clerk and let us have the proper answer.
Ms. Lynn McDonald (President, National Action Committee on the Status of Women): We would go on now or meet later.
The Joint Chairman (Mr. Joyal): So I understand you are ready to proceed immediately after the members of this Committee have expressed their vote on the motion before us.
Ms. McDonald: But we would be concerned to have full time.
The Joint Chairman (Mr. Joyal): I understand it is the agreement of members of this Committee to give you the full time it was agreed that you should have this morning.
There are other honourable members of this Committee who want to speak on the motion of Mr. Epp. I suggested that we proceed with the vote. I would like to ask the consent of honourable members so that we could proceed with the vote.
The honourable Warren Beatty and the honourable John Fraser.
Mr. Beatty: Thank you, Mr. Chairman. I will try to be as brief as possible. But I think there are a number of points which have been made here which deserve to be dealt with.
I apologize to members of the National Action Committee on the Status of Women for the fact that they have been delayed in making their presentation, and I am very pleased with the fact that the Committee has agreed that they be given full time this afternoon.
There were a number of points which were made by members on the government side with regard to this motion which must be dealt with.
First of all, Mr. Chairman, there has been an indication by members of the government in a number of instances that the agenda which we have before the Committee, the Schedule of Witnesses, decision to schedule witnesses on the basis of 45-minute intervals, in some instances, was agreed upon by members of this party.
I want to indicate to government members as forcefully as I can, that it was never agreed upon by members of this party, that it was imposed by the Liberal party. We were never in favour of running witnesses through here in a 45-minute Schedule.
Mr. Chairman, in addition, I am very concerned about the way in which the schedule is presented to us today for the coming meetings that have been set up. There has not been a single individual who has been asked to appear before this Committee.
Senator Goldenberg has tried to make a differentiation between individuals and national organizations, and he said it was more important to hear from national organizations; but I say it is also essential that we hear from distinguished individuals.
One of the responsibilities of this Committee is to look at the legality and the constitutionality of what the government is doing. We have to advise the House of Commons as to whether in fact this resolution, as drafted, should go ahead. Where are we going to get that advice. We should be getting it from distinguished constitutional scholars, not one of whom has been allowed to come here today, and not one of whom is on our agenda—and I gather that is because of the opposition of Liberal members of the Committee, who indicate that they are not interested in hearing from individuals.
Let us hear from these distinguished individuals. Let us give them a chance, let us give them an opportunity to give guidance to the Committee to decide whether or not this resolution is legal, constitutional or whether it is in the interests of unity in Canada.
Mr. Chairman, Senator Goldenberg made reference to Mr. Claude Ryan in the Liberal party. Surely, if we are looking for distinguished individuals to invite, let us start with Mr. Ryan. Senator Goldenberg admits that the Liberal leader in Quebec, Mr. Ryan, has denounced these proposals, because he disagrees profoundly with the unilateral action that has been taken by the Trudeau government and the Liberal Party.
Senator Goldenberg: He did not denounce the proposals. He said he was against unilateral action.
Mr. Beatty: Exactly. He also said that he would take you to court. So let us have Mr. Ryan here; let us invite him to come
before the Committee, and let us have the Liberal leader of Quebec indicate to the Committee and the Canadian people whether this addresses the promise made by Mr. Trudeau before the Quebec people. Members on our side would be anxious to hear him.
Mr. Chairman, Senator Goldenberg and others complained about the fact that the Committee has had to deal with a series of procedural matters. Let me review those. It is worthwhile for members of the public and members of the Committee to take a look at them and find out whether in fact they have been of any substance or whether they have been trivial.
The first thing that we had to deal with, Mr. Chairman, was the decision by the government to take unilateral action to change Canada’s constitution through an amendment made by the British Parliament which would be illegal if they tried to do it here in Canada; unilateral action.
Secondly, the second procedural issue that we had to deal with was the question of closure, where the House of Commons was gagged on Second Reading and where members of Parliament were prevented from speaking on the resolution before the matter came to Committee.
The third procedural item that we had to deal with was the arbitrary deadline, the December 9 deadline that was imposed by the Liberal majority on the Committee. We indicated our opposition in the House of Commons and the Senate to that deadline but the government stood firm and said that deadline must last.
The next issue that we dealt with as the Committee met meant that we hassled for an hour and a half over the issue of, if we are going to advertise that the Canadians should submit their opinions to the Committee, should we advertise that they could appear as witnesses and the Liberal members for an hour and a halt” dragged their feet and said that we should not do that, finally agreed to do it if we put in a caveat in there that not every witness could be heard.
What was the next issue? The next issue was whether or not the Committee would go to hear the people of Canada, would travel in the country to visit at least each province, to go out to the people, to listen to them about their views and their constitution. The Liberal members to amend voted it down, said they were opposed to that. In part they justified it on the basis of this arbitrary deadline.
What was the next issue? The next issue was radio and television coverage of the Committee proceedings, whether or not Canadians had a right to see these proceedings, whether they could see what presentations were being made by various interested groups and inviduals across the country with regard to the constitution of the people of Canada.
Well, when we moved the motion to have this open to radio and TV, the Liberal members were opposed to that. Some of them said that it would give headaches to Committee members. Senator Austin who sits beside Mr. Mackasey said he was concerned because it would bring out the ham in Committee members if the TV cameras were brought in. I do not know where he got that idea. I believe Mr. Mackasey voted with us on TV, if I remember it correctly. Did he?
Mr. Mackasey: Mr. Beatty, you asked me a question and I am glad you got one of your facts straight.
Mr. Beauty: I am delighted, Mr. Mackasey.
After the Liberal members defeated having radio and TV coverage of this proceedings, their own caucus reversed them and in the House of Commons the decision was made to open it up to radio and TV. So, that was another inconsequential procedural issue that we dealt with.
What was the next one? The question of forum, whether or not the Liberal majority meeting without a single member of the Official Opposition could hear evidence and take votes. Here again, the Liberal members voted that there should be no requirement that a member of the Official Opposition be present.
What was the next procedural issue? The next issue was when the Minister of Justice was before this Committee and we asked him for access to three polls paid for by the taxpayers of Canada dealing with this issue of constitutional reform as to whether or not this Committee should be able to see those, which have been classified by the government “secret”. The Liberal members again voted unanimously that the Committee and the people of Canada were not entitled to find out what the opinion of the people of Canada was on constitutional change.
Which brings us to today and the question of deadlines.
Mr. Chairman, Liberal members again say that they are going to vote, use their majority to deny the opportunity of the Committee of reporting to the House to ask that there be an extension to the time that is available for us to hear briefs.
Mr. Chairman, Mr. Mackasey said, well, this is an issue to be dealt with by the House Leaders and not by the Committee but where was Mr. Mackasey when Mr. Trudeau in the House of Commons and when Mr. Pinard in the House of Commons said that the Committee was master of its own procedures. This is what we heard in the House of Commons when we asked them about TV, that it was essential that we hear from the Committee as the Committee’s views. Surely when the House Leaders meet to put forward a motion to extend the timetable for this Committee, surely they are entitled to know what the feeling of Committee members are. How much time do we need? Are they to do it in isolation. Why will the Liberal members not indicate to the Committee and to the people of Canada and to their own House Leader what time is required by the Committee if people are to be heard.
Mr. Chairman, Senator Goldenberg said he would not deny the Anglican Church or the Presbyterian Church the right to be heard. But the question still remains, if he is going to cull out these groups who signed a letter that is sent to this Committee asking that the deadline be extended, who would he cut off; the Alberta Women for Constitutional Change, the Canadian Association of Schools of Social Work, the Coalition of Provincial Organizations for the Handicapped.
Senator Bird: Point of order.
The Joint Chairman (Mr. Joyal): On a point of order, the honourable senator Bird.
Senator Bird: I feel very strongly that we have been insulting to this group who represents half of the people of this country. Now, members of the other side have agreed not to interrupt and to keep on talking and going over the same ground. They have had the courtesy. But I feel that Mr. Beatty has not had the courtesy to these women who have come from afar who have been waiting for an hour and three-quarters are being insulted by Mr. Beatty and I feel this is something that this Committee should really be apologetic about.
The Joint Chairman (Mr. Joyal): Order, please. Mr. Beatty.
I had understood previously that you would be brief but I realize that you speak more in a longer period of time than all the other intervenors.
Please, order. I have just received a notice from Mrs. McDonald that they now want to go on after lunch because they had understood, they were at the table when we all agreed that you would be brief to conclude. That is the only point. I do not want to give any motive to anyone. I think that Mr. McGrath understands that we have just agreed together that we will hear them. Those ladies have accepted it on the proviso that our discussions would come to an end on a brief basis. That is the only agreement and that is the way that I have understood that you would intervene.
Mr. McGrath: Mr. Chairman, my point was to suggest, for any honourable member of the Committee to suggest that we would deliberately insult a group by making a legitimate point, which we are doing, to me is an imputation of motive which is clearly contrary to the rules. I do not think the Chair should countenance such interventions. That is the point I make and I state with great respect to the honourable lady, but it seems to me that that suggestion was certainly not the duty of. . .
The Joint Chairman (Mr. Joyal): Mr. Epp.
Mr. Epp: Mr. Chairman, on the matter of rescheduling. It is acceptable to us that if the Committee through the Joint Chairmen and the Committee which was to appear at 10:30, the National Action Committee if those arrangements can be made this afternoon, then that is acceptable to us. Whatever is most preferable to the group.
The Joint Chairman (Mr. Joyal): Are there any other members that want to speak on the suggestion put through by Mr. Epp that we should proceed with the witnesses that we had on schedule this morning for 10:30, the National Action Committee on the Status of Women to be heard later on this afternoon at 3:30? D’accord?
Some hon. Members: D’accord.
The Joint Chairman (Mr. Joyal): D’accord.
So, I will ask for the Clerk then to inform the ladies accordingly.
Mr. Beatty, you were speaking.
Mr. Beatty: Thank you. Thank you, Mr. Chairman. It is unfortunate that Senator Bird chose to interrupt because my remarks would have been long concluded if she had not done that.
Senator Bird: Well, I hope that the people . . .
Mr. Beatty: Another intervention.
Senator Bird: on television would have heard what I said.
Mr. Beatty: Another intervention.
Mr. Chairman, what we are asking for on this side is not to insult people who come before this Committee, but what we are asking is that the people of Canada should have a right to be heard. I think what is insulting to various delegations, what is insulting the Alberta Women for Constitutional Change who have asked for an extension of this deadline is to be told by Liberal members that they are not important enough to be heard, that perhaps they should be hived off to a subcommittee or that we do not have enough time or that what they have to say simply is not important enough to justify their coming before the Committee, that they should submit a written brief.
The fight that is going on here today, Mr. Chairman, is for the rights of witnesses and for the rights of the people of Canada to be heard on their Constitution. It does not belong to the politicians, it does not belong to Mr. Trudeau, it belongs to the people of Canada. All that we are asking and what the Liberal members are denying is that the people of Canada have a full and proper opportunity to be heard.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Beatty. Mr. Tobin.
Mr. Tobin: Mr. Chairman, thank you very much. I am going to be very brief but there is a point I feel I must make. It has been made already but there is a particular example I want to draw. We have had from the Opposition who are now displaying their seriousness about this whole matter by chuckling, as they so regularly do when anybody else besides their own members speak, we have had acrimonious debate, total delaying tactics and if you are asking me if I am imputing motives then the answer is yes.
Let me just finish, let me just finish. On the first or second day we met there was a discussion as to whether or not in making an interim report to the House of Commons it would have the technical effect of dissolving the Committee. I remember very well what Mr. Beatty said that day in response to Mr. Corbin’s intervention. He said, well, if in making an interim report to the House of Commons we will dissolve this Committee, let us make that report.
I think that reflected very well his attitude.
Mr. Beatty: That is not true, Mr. Chairman. That is not true and I would invite Mr. Tobin to check the record.
Mr. Tobin: My memory serves me very well.
The point I am trying to make. . .
The Joint Chairman (Mr. Joyal): Order, please.
Mr. Tobin: The point I am trying to make, Mr. Chairman, I do not know whether or not Mr. Beatty was serious. Neverthe-
less, he said it. I will say this that the actions of Mr. Beatty, more than is absolutely necessary, and his colleagues in raising points of order, in continously interrupting the flow of witnesses, leads me to suspect he may have been serious. I just ask him to consider what he has said, what I am sure is on the record and what I heard, and I ask the Canadian public to consider Mr. Beatty’s words.
Now, we are here to hear witnesses, to hear from the people of Canada, not to listen to politicians, in my view who are merrily making points for the television cameras for the sake of their constituents back home. Let us be Canadians for once, let us not be narrow, regional politicians who are interested in making your supporters back home happy because you took up some television time with points of order.
If you do not have anything any more beneficial to contribute—look, I am being frank, I do not want to play games with this thing. I am serious. I am upset that this Committee has been sitting wasting all kinds of valuable time, as limited as it is, and perhaps it will be extended on silly points of order that we already agreed would be discussed—and excuse me, if I am not eloquent, I am simple Newfoundlander—that we have already agreed would be discussed in the steering committee.
Now, the steering committee is the place for it, not the valuable time of this Committee and the time of witnesses who want to appear.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Tobin,
I therefore consider that the honourable members and senators are in agreement that we go to the vote on this motion. I will reread the motion so that we might immediately call the vote.
Mr. Irwin: Mr. Chairman, I am on that list and I want to make it clear I came here two hours ago to listen to the Status of Women, not to hear this type of debate. I do not want to be heard this time, I want to go to the vote.
Miss MacDonald: They are appearing tonight.
Mr. Irwin: The National Action Committee on the Status of Women was slated for two hours, two hours ago they were slated to come here and we have heard two hours of an MP going back and forth. I want to be part of that discussion. I came here to listen to the people of Canada, not to this rhetoric.
The Joint Chairman (Mr. Joyal): Order, please,
I will then reread the motion for the benefit of the honourable members of this committee.
That the committee report immediately to the House of Commons and the Senate requesting that the deadline for the report of the Special Joint Committee on the Constitution be extended from December 9, 1980, to February 6, 1981, and that upon a favourable decision by both Houses, the committee shall advertise that the deadline for receiving written briefs or requests to appear before the committee is extended to December 31, 1980.
All those in favour of the motion?
Motion negatived: Yeas, 10; Nays, 14.
We have, of course, gone far beyond the deadline we had set for this meeting and, therefore, with the authorization and consent of the honourable members of this committee, I will adjourn our meeting until 3.30 this afternoon when we will hear the National Action Committee on the Status of Women, le Comité national d’Action sur le Statut de la Femme.
The Joint Chairman (Mr. Joyal): Will the members of the committee please take their seat, and would the representatives from the press who have recording or filming equipment, please leave the room so that we can resume our deliberations where we left off this morning.
I am most pleased, on behalf of the honourable members of this committee,
[Text] to welcome the National Action Committee on the Status of Women and in particular Lynn McDonald President; Jill Porter, member of the Executive; Betsy Carr, co-equal member of the Executive; and Mary Lou McPhedron, member of the National Women and the Law Association.
I understand that you have a written brief that you would like to put through and that you would be available for questioning by the honourable members of this Committee. May I invite you to speak, Ms. McDonald.
Ms. L. McDonald (President, National Action Committee on the Status of Women): Thank you, Mr. Chairman. We will first of all give our written brief, all three of us will be speaking, and I will make some remarks and then we will be available for questioning.
Ms. Porter will begin.
The Joint Chairman (Mr. Joyal): Ms. Porter.
Ms. J. Porter (Member of the Executive, National Action Committee on the Status of Women): Women could be worse off if the proposed charter of rights and freedoms is entrenched in Canada’s constitution. Certainly the present wording will do nothing to protect women from discriminatory legislation, nor relieve inequities that have accumulated in judicial decisions.
Differences between the life patterns of women and men have not been considered by the drafters of the proposed charter. We ask you now to look at the new charter in a different way, from the perspective of over half the population of Canada, to see its deficiencies and to consider amendments to affirm and protect the fundamental rights of equality of women with men.
The National Action Committee on the Status of Women is a voluntary organization working to improve the status of
women in Canada. NAC is an umbrella for more than 150 nongovernmental organizations across the country, some regional, others Canada-wide. It promotes reform in laws and public policies, informs the public about women’s concerns, and fosters co-operation among women’s organizations.
NAC held a public forum on the constitution in Toronto on October 18, 1980, the recommendations from which were considered by the executive and form the basis of this brief. Notably, it was agreed that we support the entrenchment of a charter of rights and freedoms in principle. However, Part I of the constitution act, 1980, would be acceptable only if amendments are made to Sections 1. 15(1) and (2), Section 24 and Section 29(2), and a new section on the supreme court.
NAC has already informed the Minister of Justice of its opposition to moving divorce from federal to provincial jurisdiction. Also in this brief we do not address the division of powers which has wide application, especially in the area of social services. Women have encountered difficulty by interminable referals back and forth because of federal-provincial sharing of responsibility for financing and administration.
Once again, we are very concerned about this situation but will not be addressing it today.
Ms. L. McDonald: The opening section under guarantee of rights and freedoms falls short of the statement of principle we would expect. imprecise wording in the limitations clause could open the way to a variety of interpretations of permitted exceptions. Indeed, the potential for driving a truck through the clause led our participants at the conference to dub it the “Mack truck clause”.
Failure to clarify the guaranteed rights and freedoms by removing the limiting clause would render useless subsequent sections. Therefore, NAC proposes that the general limiting clause be deleted.
If there have to be restrictions on rights and freedoms in time of war these should be specified as well as those rights and freedoms not to be abridged under any circumstances. NAC recommends that the rights and freedoms not to be abridged under any cirumstances should include at least the right not to be subjected to any cruel and unusual treatment or punishment and the human right to equality in the law.
Equality before the law, the wording proposed in the government’s Charter of Rights, and used in the present Canadian Bill of Rights, has been interpreted to mean only that laws, once passed. will be equally applied to all individuals in the category concerned. The law as written could discriminate against women, which is neither just nor acceptable. The courts have been concerned with maintaining the just administration of the law. but not with discrimination built into the law itself. Thus the Supreme Court of Canada decided against Lavell and Bedard, two Indian women who lost their status on marriage to non-status men. If the present wording prevails,
there is no guarantee that Indian women will not continue to be denied equal rights with Indian men.
NAC recommends amendment to provide for equality in the laws themselves, as well as in administration of the laws.
Better still would be a statement that equality is a positive objective, and requiring an “evening-out” process towards its achievement. This would be consistent with the view that freedom from discrimination is a positive human right women are entitled to enjoy. It would discourage a narrow interpretation of equality and prevent objections to affirmative action programs which could lead to costly, time-consuming litigation.
NAC recommends a new clause to specify the human right to equality as a positive objective.
To add to that very briefly, the Canadian government in Copenhagen this summer signed a convention on elimination of all forms of discrimination against women which is much more specific on the positive aspects that equality should be aimed at, including economic equality, at least some measure of reproductive freedom, equal rights and responsibilities in marriage and for child care, a commitment to positive measures, legislation, establishment of courts, administrative measures and national machinery to pursue the objective of equality. Much more positive that what we have in the present charter.
In view of the Stella Bliss case especially, it is clear that more specific directions need to be given to the courts for the interpretation of equality. Notably it is necessary to specify that discrimination on the basis of sex is proscribed whether the law discriminates against all women or only some of them.
NAC recommends the addition of a new clause to Section 15 specifying that discrimination on the basis of specified category is proscribed whether all members of that category are affected or only some.
I am sorry, I have missed Section E on page 4. NAC recommends that the specified categories in Section 15(1) be amended to include marital status, sexual orientation and political belief. We do not elaborate here but these are included in other codes and we would recommend they be included here.
Part I, Section 15(2). We believe that this clause on affirmative action programmes is intended to include women, but nowhere is this expressly stated. Given the sorry record of the courts on women’s rights cases, this is not a matter to be left to judicial discretion. Should affirmative action programmes be
established we do not want to have to spend years in court proving their legality.
The National Action Committee recommends adding to Section 15(2) the words “including women”.
No delay should be necessary in the application of (1) and (2) of Section 15. Advisory councils on the status of women have the necessary inventories of relevant legislation requiring up-dating which could be proceeded with immediately. Therefore, NAC recommends that Section 29(2) be deleted.
Section 24 and Section 25 of the proposed charter actually threaten to entrench unequal rights for native women. Under the present Indian Act men are given special rights to pass on Indian status to a n0n-lndian spouse and their children, while native women are denied the same ability. Indian women indeed lose their status on marriage to a nonstatus spouse, and cannot regain it, even on divorce or widowhood. The spouse of a status man, by contrast, retains Indian status even if the marriage is dissolved. Entrenchment of the rights and freedoms now existing for the native people could be interpreted to mean entrenchment of special rights to native men and their denial to native women.
The National Action Committee recommends amendment to Section 24 by adding “providing that any such rights or freedoms apply equally to native men and to native women”.
I will turn this over to Ms. Carr.
Ms. B. Carr (Member of Executive, National Action Committee on the Status of Women): The Supreme Court of Canada. Decisions as to what rights and freedoms Canadian women will enjoy will continue to be made by the courts and ultimately by the Supreme Court of Canada. Yet, the Supreme Court of Canada decided: that women were not persons; the famous 1928 Persons’ case; that discrimination against Indian women in the Indian Act does not violate equality before the law; that Stella Bliss was not discriminated against because she was a women, but a pregnant person; and that Irene Murdock had no claim to a share in the ranch on which she had, for 20 years, done the haying, raking, swathing, mowing, driven the horses and tractors, and dehorned, vaccinated and branded the cattle, as well as kept house and raised four children, because she had done no more than what a normal farm wife would do.
A representative number of women on the bench is not just a demand for symbolism, that women and men are equal, nor for career opportunities, although women deserve the same chance at judicial appointments and promotions as men. Very practically, numbers count. The decision on Lavell and Bedard, which was mentioned earlier, was by a 5-4 majority in the Supreme Court of Canada. However, before it reached the Supreme Court, four out of five judges hearing these cases found for the women. Altogether 14 judges ruled on these cases, 8 in favour of the women’s argument, 5 against, and one did not decide on the equality aspects. Clearly, the appoint-
ment of even one or two women to the Supreme Court of Canada could have made a difference in these crucial women’s rights cases.
At present three out of nine places on the Supreme Court of Canada are allocated to Quebec because it is accepted that judges without experience in civil law should not be deciding civil law appeals. Should the same argument not hold for women’s appeals, if not on grounds of socialization, gender identity and roles, then on the actual record of male judges in women’s rights cases?
The National Action Committee on the Status of Women recommends addition of a new section to guarantee the appointment of a representative number of women to the courts, including the Supreme Court of Canada.
The consistent use of the word “everyone” throughout this charter concerns us. “Every person” would be more specific, since “person” as used in the BNA Act has been clearly defined by the courts in the Person’s case. That was the judicial committee of the Privy Council.
The National Action Committee recommends replacement of the word “everyone” with “every person” throughout the charter.
To sum up, in order for the charter to provide unmistakably for the human right to equality for every person in Canada, including women, key changes are required in Section 1, Section 15(1) and (2). Amendments proposed in Sections 24 and 29(2) contribute to the same end. These changes are required to protect the fundamental rights and freedoms of all people in Canada, women and men, in their encounters with government and each other.
Now, you will notice that there is a list of the entire 11 recommendations that is appended to your copy of the brief.
The Joint Chairman (Mr. Joyal): Thank you.
Ms. L. McDonald: I would just like to make a few remarks about the process. The National Action Committee is extremely concerned about the lack of time available for discussion of such an important matter as the constitution. We had hoped to hold conferences across the country in order to facilitate discussion from the grass roots on what women’s concerns were. We appplied for special funding for this beginning last May. We were not able to obtain it and we were not able to hold these conferences. We have held one, which was the basis for this brief, and another one will be held next week in Halifax but it takes a long time to get national organizations going.
We are a federation of 150 organisations, some of them large, some of them small. We meet as a national body only once a year. You have heard it before but it is very difficult for groups to consult with their constituencies with very little time.
I think that if one could hear from more women’s groups across the country, you would hear perhaps different things, you might have different emphasis on different parts, certainly other women’s groups should be heard and it is difficult with the lack of time.
We feel this especially strongly as a women’s group because women, while we are half the population, are less than 5 percent of the members of Parliament. If there is to be significant discussion amongst women, it has to be outside Parliament, in other words, our situation is different from other people in this respect.
Another of the particular difficulties is, from our point of view, that the problems are insidious ones. It looks on the surface that women are being given rights in this charter and it is only when you read between the lines and you find out what the Supreme Court decisions are, what the words actually mean, you find that women are not being given rights. In other words, it is a complicated matter to discuss and explain, it takes time to get this across, and we have felt the pressure of time. Therefore, we have supported the request of the Canadian Connection Group for an extension of the time period for the submission of briefs and generally an extension and a loosening up of the procedures for consultation.
The Joint Chairman (Mr. Joyal): Merci, Madame McDonald. I would like to recognize in our First Tour the Honourable Flora MacDonald. Madame MacDonald.
Miss MacDonald (Kingston and the Islands): Thank you, Mr. Chairman. You will note the frequent use of the word “M(a)cDonald” this afternoon.
The Joint Chairman (Mr. Joyal): Well, it is quite a well known name in Canada’s history, Miss MacDonald.
Miss MacDonald (Kingston and the Islands): I want to compliment the National Action Committee on their submission today and to thank Lynn McDonald for her comments just towards the end of her statement when she stressed once again the tremendous urgency there is for additional time so that other groups can be heard, and particularly in this very complicated area, that more women’s groups be heard. I would imagine, given the number of women’s groups who have asked to be heard, that we will find there is once again a kind of discrimination which takes place because I would venture to predict at this point that there will be far fewer women’s groups heard than those of the other sex, and I would hope that there would be some balance brought into the selection of the groups to be heard in the Committee hearings.
I think that the opening line of the National Action Committee’s brief sums up the tremendous anger that has been building up in Canadian women for a long time about the position they find themselves in, and once again they are confronted with a document which does not do justice to women, and the opening line of the National Action Committee’s brief says:
Women could be worse off if the proposed charter of rights and freedoms is entrenched in Canada’s constitution.
In other words, this document as it now stands could make the lot of women in Canada worse than it is at the present time. Now, that is quite an indictment coming from a body that represents 150 women’s groups, and I would ask Committee members to take into consideration just what a strong statement that is. It expresses the anger of women, because it goes back over the history of this country where for the first 60 years of history of this country, under the common law which we traditionally hold to, women were denied the right to vote. That is the penalty they had under the common law.
Under the courts women were denied the right to be known as persons, so that women were penalized whether through the common law or whether through the courts, and that is etched deeply into the soul of women right across the country.
Now, one of the reasons I would imagine that the submission starts off with the statement that women could be worse off if this proposed charter of rights and freedoms is entrenched in Canada’s constitution is that there was very little consultation with women’s organizations in the preparation of this charter of rights and freedoms, or in fact in the constitutional proposals. There was to have been a constitutional conference in September which I had anticipated would provide some input into the Government’s proposals and that was cancelled, and I would ask you, Ms. McDonald or either of your confreres whether or not at any time the National Action Committee was asked for any submissions or views as to how this very important document should be put together?
Ms. L. McDonald: Certainly as an organization none of us were asked by the government for our views on the constitution, not at all. We were invited by the Advisory Council on the Status of Women to prepare a paper which Jill Porter did work on, on social services as affecting women; but no, we were not asked.
Miss MacDonald (Kingston and the Islands): You were not asked and yet you represent some 150 women’s groups and your submission went to the Advisory Council on the Status of Women who have also condemned this document, so obviously if they had any input, it did not have much effect on the government.
I would like to look at some of the points which you have raised because, of course, the charter as you say, locks women into the concept of equality which in fact does not exist at all as equality. The first section, Section 1, the general limiting clause. Now, you have recommended that it be deleted; others who have been before the Committee, notably the Human Rights Commissioner, recommended that it be tightened up considerably so that the words “such reasonable limits as are generally accepted” be deleted from it, because of course, it is generally accepted that women are equal and that, as certainly many women realize, just is not so. I am wondering if you would in fact reconsider the recommendation you have made, looking to the fact that the International Covenant on Human Rights has a general statement regarding the rights of men
and women, and the recommendation Mr. Fairweather made also stated that at the outset of the charter there should be a statement which in fact does guarantee the rights of men and women in a general way, before we get into specifics, before we get down to the nuts and bolts, we in fact make that broad general statement in a positive manner and the suggestion that he made was that right at the very outset should be included: this charter guarantees the equal right of men and women to the enjoyments of the rights of men and women to the enjoyments of the rights and freedoms set out in it.
Now, I wonder if you took that positive approach, whether your group might consider the inclusion of that as something that would strengthen the charter?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: Mr. Chairman, we have recommended something similar to that in saying that there should be a positive statement of equality as a goal to be worked at, that this is a positive achievement for society. I think we would very much welcome a general statement at the beginning specifying equal rights between women and men. I do not know that we would be happy with just tightening up this other wording about th qualifications. The “generally accepted” qualification makes women very nervous . . .
An hon. Member: Hear, hear.
Ms. L. McDonald: I think for reasons similar to what Mr. Fairweather and other witnesses have raised regarding the treatment of Japanese Canadians. It was within my lifetime that married women were thrown out of the Public Service on marriage. The Stella Bliss case shows how unacceptable women in the labour force are if they are pregnant or if they have very young children. We cannot take as generally accepted all of the rights and freedoms that we would want to have. There are still people that would argue that women do not have a right to jobs on the same basis that men have that right. So we would certainly want that to be in there very strongly.
Miss MacDonald (Kingston and the Islands): Thank you. I would like to move on to Section 7 which you did not address but it is one that has come up at different times because once again there is an omission there that is in the International Covenant on Human Rights; it is in the preceding bill of rights and it has to do with property rights. Women have fought for equality in property rights on many occasions and in various levels of government and in any over-riding charter I would hope that that property right would be included. I wonder if perhaps this was something you had not addressed, or if you took a decision against it, or would you consider including property rights?
Ms. L. McDonald: We simply have not addressed it and I think this is one of the difficulties with the constraint of time. We are not in a position to speak for 150 organizations or even to canvass them for their views on this, so we cannot give you an answer to that.
Miss MacDonald (Kingston and the Islands): I will turn then to Section 15(1) and (2) and Sections 24 and 25 which are indeed linked to it because these are the more specific as opposed to the general statement of rights. Section 15(1) and 15(2) deals with nondiscrimination rights and as you say there is no real reference to the rights of women as such. That is something which would definitely have to be written into Section 15(1) as far as you are concerned, to make a specific recommendation to the rights of women?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: We would prefer a positive statement, where exactly it goes could be debated, But we would prefer a positive statement, not just the nondiscrimination, partly because of the problems in Section 15(2) in that affirmative action programs could be ruled to be illegal, whereas if there were a positive statement about equality as a good thing to be aimed at, affirmative action programs would be seen as a natural follow-up to that.
Miss MacDonald (Kingston and the Islands): Yes. I realize that; that is Section 15(2) which we are talking about as far as disadvantaged person and putting in the positive statement there, but 1 would think in Section 15(1) it would be necessary to spell out very clearly that every man and woman has the right to equality before the law, that it has to be put in in much clearer terms in Section 15(1) than it is now.
Ms. L. McDonald: Yes. Our complaint with Section 15(1) is not that the sex discrimination is not so clear but that the equality before the law is an inadequate wording, because it has been interpreted only to mean equality in the application of the law and has not been interpreted to mean that the laws themselves must not discriminate against women.
Miss MacDonald (Kingston and the Islands): Indeed this is the very wording that had been used in the Lavell case to deny the rights of women.
Ms. L. McDonald: Yes.
Miss MacDonald (Kingston and the Islands): You made the suggestion of adding certain other categories to that, in that section. I think the ones you suggested are marital status, sexual orientation and political beliefs. Now, I would ask you if in that too you would consider, because I think that it should certainly be known that women support this kind of thing, that you include as well the mentally and physically handicapped.
Ms. L. McDonald: We have never canvassed on this point, but I expect that that would find very broad support among women’s organizations.
Miss MacDonald (Kingston and the Islands): Section 15(2), that is the one which I think could kill any affirmative action program that is now in effect in Canada if the courts so decided of if they moved in much the same way they have in
the past as far as women’s rights are concerned, because it talks about this, it says:
(2) This section does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.
But by and large women are not seen as a disadvantaged group and yet any affirmative action program that is in effect for women could be killed by an interpretation of that section.
Ms. L. McDonald: This is a very dangerous one. Incidentally, I would like to make the point that I am not aware of any real affirmative action programs in the country at the present time in the sense of a program intended to enable women to catch up. The ones which exist simply are to prevent further discrimination, to keep women from falling below where they ought to be. For example, if women constitute 40 per cent of the people who have a certain skill. they should get 40 per cent of the jobs in that area. it is not suggested they ought to 60 per cent to compensate for the fact they only had 20 per cent before. There are not any programs which would actually disadvantage a man to my knowledge in Canada, but should that happen, should there be genuine catch-up programs, there is a very real danger that they would be ruled to be illegal by the Supreme Court. lf we sound to be in contempt of court, it is for very good reasons.
Miss MacDonald (Kingston and the Islands): Hear, hear.
Ms. L. McDonald: The decisions of the Supreme Court and other courts, the courts generally, have been very bad.
When women are the victims of discrimination, judges have been very bad on this. They have been much better on native peoples, much better on ethnic minorities than they have been on women’s issues. That is why we think we just have to spell out these things. We just cannot leave that one to chance.
Miss MacDonald (Kingston and the Islands): I have a final question, do I, Mr. Chairman?
The Joint Chairman (Mr. Joyal): Yes, your last question.
Miss MacDonald (Kingston and the Islands): I want to touch briefly on the whole question of the lack of rights for Indian women in this country and I hope that the Indian Rights for Indian Women’s groups will be able to appear before this Committee. But the charter as it is now written would, in fact, entrench, in my opinion, the abhorrent clause, Section 12(1)(b) of the Indian Act, into the constitution of Canada and make it even more difficult for Indian women to gain their rights. If you follow through from Section 15 to Section 24 and Section 25, you will find that it would lock in the wording of the very clause that denied Jeanette Lavell the right to be regarded as an Indian, even though she is a full blood Indian woman. If something is not done about this, if
some change is not made to take that particular situation into consideration, you will find that the Sandra Lovelaces of this world who have to go to the United Nations now to seek redress against discrimination are going to have to continue to go to the United Nations rather than to the Government of Canada or the courts of Canada.
I wonder if you would comment on how you see the Sections 15, 24 and 25 locking in the discrimination that now exists aginst Indian women.
The Joint Chairman (Mr. Joyal): Ms. Carr.
Ms. Carr: Thank you. The situation here is really desperate for Indian women. Unless we can spell out the understanding of the present situation where there is a built in discrimination and there has been, as Miss MacDonald has just explained to us, the rather invidious situation where Indian women in Canada have to go abroad to look for redress in this, to my mind it is like pouring concrete over a very unjust situation. It will be set for all time to come if the wording here is not changed to accommodate it. I am not really prepared to explain any definite wording and how to handle this. We are not constitutional experts. We think we see some of the soft spots. We think we see what needs to be done. We return it to you people with your expertise to get our ideas into this Charter of Rights.
The Joint Chairman (Mr. Joyal): Miss Jewett, please.
Miss Jewett: Thank you, Mr. Chairman.
I want to congratulate the National Action Committee on the Status of Women as well, on in a very short time preparing such an excellent brief. I have shared their concern for a number of years and, indeed, as Miss MacDonald will know, spoke in the House of Commons on October 23 when we were then debating the proposed constitutional resolution.
I wanted to emphasize then and emphasize again now how important it is that the equality of women, women’s human right to equality is a positive objective that must in the document be stated as a positive objective.
I wanted also to emphasize, and I think you have but perhaps you might want to comment a little further. on the very great importance of changing the wording that is now “before the law,” the very great importance of changing that to “in the law” or “in law”, because of the fact that the “before the law” clause has been, of course, a part of our common law and it is also a part of the statutory bill of rights and as has been said, has been interpreted in a way not to provide for equality in the law itself.
I am assuming that you would want in Section 15(1) a definite change in the wording that now exists and remove “before the law”.
What is so very important, it is not the minor fact that we change a word, it is of vital importance to give a clear message to the courts and to the legislatures that their interpretation must be changed. If you use the same words naturally a court will continue to interpret those words the way the court has
hitherto interpreted them. Nor is it any good to say, as I think the Minister responsible for the status of women says, that by entrenching the bill you will somehow be giving a message to the courts that they should interpret those words differently. I do not myself believe that is a valid argument to make. In fact I think it is a very flimsy argument to make because the courts in many instances have interpreted the Diefenbaker bill of rights, the Canadian Bill of Rights as if it were entrenched. And the famous Drybones decision has never been overturned on that score and therefore, simply now to say that the words will be treated differently, is to me a very weak argument.
In my speech in the House, and I think I was the only one that did speak specifically on the need for change as far as women are concerned, I did make an appeal to all my fellow members of the House and particularly to the 14 women in the House, that we should do as we had done once before this year, get together as we did on the question, Flora MacDonald will recall, of equality for Indian women, I hope that all the women will once again get together to ensure that the changes that you have suggested and other changes might be made.
I would like to ask a few particular questions. Again, this may be a problem that you have had so little time that you would not have been able to have canvassed all your members about it. I wondered if you had given thought though to removing the word, “discrimination” in Section 15(1), in fact it is not in the French version at all, and use the word, “distinction”.
I will just give the exact wording. It says here:
without discrimination because of race, national or ethnic origin,
I wondered if you had given any consideration to this ticklish matter of what is a reasonable distinction and what rights might be abridged or limited on the basis of a reasonable distinction.
Some people would argue for example that in the case of age you do not have complete rights for everybody of every age, children and older people alike, and in what areas there should never be allowed a “reasonable distinction” or “equality on the basis of a reasonable distinction”.
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: Two points to address here, one on the entrenchment issue itself. We want to stress that the Lavell and Bedard cases were lost to women not because of the lack of entrenchment of a Canadian bill of rights but because the judges did not see the issue as a matter of equality because they interpreted “equality before the law” in an extremely narrow fashion. Miss Jewett is quite right in pointing out that the judges did not come up with this narrow interpretation when it was a matter of Drybones where the victim of discrimination was a native male, but they were unable to see equality when it was a case of women being the victims. So it
was not the lack of entrenchment that has done women in on these very important women’s rights cases.
The matter of “reasonable distinction” is a very tricky one, and one that we would be very worried about. I think the important point is that some characteristics are immutable, sex is and race is, and we do go through different ages. Questions of income and social class, these are changeable things, people’s occupations, their abilities and so forth. Of course, there are reasonable distinctions that have to be made. The Unemployment insurance Act has to distinguish between people who are unemployed and people who are employed. That is a reasonable distinction. But we have to be very careful when it is a matter of an immutable characteristic such as sex and race. “Reasonable distinction”, there have been court cases in which this has been argued or a “valid objective” and of course this has been traditionally very detrimental to women because one could always think of some good objective. Protective legislation, so-called protective legislation has been of this sort. It has made a reasonable distinction, it has been for the benefit of women and it has not been in practice. So we would be leery of anything along those lines.
Miss Jewett: But you would generally agree that probably one should have perhaps two tiers, those where no distinction should be made, that there will never be allowed a reasonable distinction; and certainly we could agree that characteristics, as you say, of sort of immutable character would be included such as race and sex, and that there would then be another tier where reasonable distinctions could be made, you would agree with that.
Of course one of the reasons why this is so badly drafted and why women’s groups, and we will be hearing later from the Canadian Advisory Council on the Status of Women, have been protesting the present wording is because unfortunately most of the academic lawyers and government lawyers who have been looking at questions relating to equality over the past ten years have not been looking at the problem of women’s equality and, indeed, have not been women lawyers and academics. 1 think your brief shows the benefit to be derived by the fact that young women nowadays are becoming prominent as constitutional lawyers and prominent in the legal profession as well as in the law schools.
In this connection, I wondered if you had given any thought to, or the lawyers that are advising you, had given any thought to the effect of Section 42 on women. Now this is the referendum section and most of us, in my party anyway, feel that the referendum section should not apply to the charter and, therefore, would not apply to Section 15. One of the main purposes of entrenching rights and particularly adequately entrenching women’s human right to equality, and indeed the rights of ethnic and other minorities and so on, is so they cannot be taken away by a majority vote. Have you given any thought to the fact that the referendum, as it now stands, would apply to all parts of the constitution act of 1980, including the charter of rights?
Ms. L. McDonald: No, we have not addressed that question specifically. I would agree with you on the reasons for your argument, that we want something where rights cannot be brought into question. But women, of course, will be divided as men are divided on many other issues that might be brought to a referendum such as rights of collectivity.
Miss Jewett: Yes.
Ms. L. McDonald: So we would not want to close that off. Again, this is a complex matter on which we have not canvassed our 150 groups.
Miss Jewett: Right.
Ms. L. McDonald: We cannot be more precise. Sorry.
Miss Jewett: Perhaps it is one you will give a little more thought to in what time is available?
If I may go back to Section l, I agree with you that it would be far better to have a simple statement of process, the one that has been often suggested is simply:
1. The Canadian Charter of Rights and Freedoms guarantees
To every individual:
the rights and freedoms set out in it
I wonder what you would think with simply continuing that statement with the phrase, “and the equal rights of women and men to the enjoyment of these rights and freedoms”. This was mentioned a moment ago and was also mentioned by the Chairman of the Human Rights Commission. But it seems to me that it might be the simplest and best—simply to add that clause “and the equal rights of women and men to the enjoyment of these rights and freedoms,” so do you feel that would be sufficient to get across the positive thrust that you are anxious to have this document portray?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: I think it would be sufficient to get across the positive thrust; but we would not like to see the fine print left out on these other things. But that would be quite an acceptable wording.
Miss Jewett: No, no. There would still have to be the changes in Section 15.
Ms. L. McDonald: Yes.
Miss Jewett: The question of the Supreme Court is not addressed in this particular constitution act. Did you really hope that we might actually address it at this stage, the composition of the Supreme Court? If so, have you thought specifically of the number of judges that would be appropriate and who would be women? You say a representative number. I wonder if a representative number would be 50 per cent. I wonder if we were going to be really brave and make that proposal?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: That would be excellent, if you would be really brave and make that proposal.
We did hedge and say, “representative”. It would take some time for women to be appointed and to work up to that 50 per cent. We addressed the question because we think it is extremely important that you consider who is sitting on the Supreme Court and in other courts making the decisions. You cannot just talk about the form and not the substance. Who are going to be making these decisions?
We have reason to believe that the quality of debate changes, and changes for the better, as far as women are concerned when more women are present taking part in the debate.
For example, the Nordic countries, which have 50 per cent women on the city councils, and in some Parliaments 25 per cent, now find that it is much easier to raise women’s issues and have them taken seriously. It changes the climate of understanding and gives a certain legitimacy to women’s concerns just by having women there; they do not have to be feminists; they just have to be there. The men’s understanding improves.
Mr. Mackasey: All women are feminists.
The Joint Chairman (Mr. Joyal): Miss Jewett.
Miss Jewett: If I may just ask about Section 29(2)—this is the moratorium section, which excludes Section 15 of the charter from immediate application.
Assuming that Section 15 is appropriately amended, particularly removing the “before the law” clause and changing it to “in law”, and also strengthening the affirmative action section, and assuming this has been done, would you elaborate more on your argument that a three-year moratorium on putting this into effect is unnecessary?
I, myself, am curious to know why a moratorium would be necessary, and I wondered whether you had also thought this out and had developed reasons for abolishing that moratorium?
The Joint Chairman (Mr. Joyal): Ms. Carr.
Ms. Carr: We do not believe it is necessary. Therefore, we do not think it should be there. I might just draw a parallel with some of the other rights that are being considered and dealt with in the charter. For instance, language rights, mobility rights, et cetera, even rights of the aged: is there any reason why this section should have a moratorium on it to enable this legislation to be brought up to date? I believe it can be handled.
The advisory councils have lists of these. Perhaps this information was not available to the drafters; but I really think we can get along without it. I think there are dangers in having it there, because other things could happen during the three year period which would not be palatable.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: Thank you, Mr. Chairman. I realize, Mr. Chairman, we are now under considerable constraints of time, and I will try to confine my remarks and comments and just elicit a few responses from our witnesses. I think their brief has been very helpful, and I hope they will appreciate the
unusual number of women members who are at least temporarily enhancing this Committee and see it as some signal of the concern we all feel and of our support for many of the objectives which you have stated in your brief.
If I could just go through your comments, with respect to your comments on Section 1, I am inclined to agree with you absolutely. You may be gratified to know that we had an excellent brief the other night from the Canadian Jewish Congress, who, in fact, gave us exactly the same suggestion as you did, which was to eliminate Section 1.
I have no doubt that if it is retained in any form it will be substantially strengthened, because I agree with you it is most inadequate the way it is at the moment.
In your B recommendation, again this is a suggestion which has been made by more than one group that has been before us, including the Canadian Jewish Congress the other night. I think that is a very reasonable suggestion and is perhaps one which the drafters overlooked, because I think there was no intention, really, oa making the section so that every human right which has been enumerated could be abolished or abrogated even in an emergency.
I am confident that section will also be considerably strengthened.
In your comments on equality before the law, I agree with you absolutely. This section needs to be changed. We cannot accept the wording there because of the judicial decisions which have been made. It has been my understanding that some new wording has been proposed. I am hoping-and I am certainly confident-that this section can be changed to ensure that it would be perfectly obvious that the effects of the Lavell and Bedard decisions are no longer good in law and that will be recognized.
As a matter of fact, I rather prefer your positive approach to equality before the law of both men and women, and I would prefer that neater, more positive and direct approach myself.
We will have to see what changes are made eventually in that.
I am not quite sure what is meant by your recommendation F that on the basis of a specified category as prescribed whether all members of that category are affected or only some.
What was the purpose of that?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: This came from the Stella Bliss decision, where we had a Supreme Court decision to the effect that not all pregnant women were denied benefits under the Unemployment Insurance Act, and therefore there was no discrimination against women. It was a ludicrous decision, the kind of thing— and the analogy could be drawn with the Drybones case: not all Indians were discriminated against; not all Indians are intoxicated off the reserve.
But in Stella Bliss, a woman was denied equality before the law on the grounds that not all women in that category were discriminated against. We just think it is necessary to fill in the footnotes to give directions to the judges to interpret actual cases that come before them.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: With respect to Section 15(1) and Section 15(2), I have some reticence about going along with the recommendation you have made, particularly under Section 2, that we need to include the words “including women in the affirmative action section.” It says:
the amelioration of conditions of disadvantaged persons or groups.
If, by any chance we do get the amendments and the kind of charter that you otherwise ask for that ensures the equality of women before the law, I really do not see the necessity of inserting that kind of phrase in there; whether you would say “including men” or “including women”; they are persons, and persons before the law. So I do not think that reinforcement is necessary in there; there are affirmative action programmes, and it is my view that, of course, there are going to be disadvantaged women, and they will have to be given special consideration under affirmative action programmes. But there will also be disadvantaged men from time to time for other reasons.
So, I feel that if we get the other amendments to this charter, that in itself should be more than sufficient to protect both sexes.
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: We do not agree with that. Women, today, on average earn 60 per cent of what men do for fulltime work. It is very difficult to imagine the tables being turned so much that men average only about 60 per cent of what women earn. It cannot be within our imagination that the tables would be so badly turned that men, as a group, would be disadvantaged so as to require affirmative action programmes.
What we worry about is the fact that women are about half the population of the country. Would the courts decide, women being half the population of the country. that they constituted a group in that sense, a disadvantaged group? I can hear a judge saying, “Women are not a disadvantaged group. My wife has never ever been disadvantaged.”
If you read the cases, you will see remarks of this sort. There has been a terrific inability among judges to understand inequality against women, and I do not think we can leave this one to chance.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: I understand your concern, but I still feel if the other sections were strengthened and women had recourse to the law under the equality sections, eventually those inequities which are now in existence would gradually be eliminated.
The Joint Chairman (Mr. Joyal): Ms. Carr.
Ms. Carr: I wish I could share your optimism that all the other things we are asking for would be granted. I hope that would be so. But we want to be sure that this is quite clear in this particular case, in case the wording is not quite to our liking somewhere else.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: I understand that, but we hope we will get the other amendments that we want, Ms. Carr.
The other matter I would like to refer to is your comments and recommendations with respect to Section 24, particularly, again, to native people. There, again, I believe—I am not satisfied that is a rather general statement in there; but I think that the concerns of the native women with respect to the present Section 12(1)(b) of the Indian Act, will be met even by the provisions of this charter. I know that some people feel that they will not, but if you read that, together with Section 25, it is my opinion that that section overrides every other statute, including the Indian Act which is a federal statute; and that the only problem you may have with it is that it does not come into effect for three years, if Section 29(2) to which you also object, remains as it is.
But, I think you are obviously aware that there has been a moratorium placed on the application of 12(1)(b) at the moment—and I hear comments that it is not working; I know it is not working; but it is not simply because of the women, but because of the Indian Bands. I am not excusing that, but simply saying that it is not working; that it is going to take some time in the concurrence in both men’s and women’s groups to have that section changed.
But in my view, there is no doubt that three years from the proclamation of the section of this charter they will have the full protection, if not sooner, of the law and of this charter.
So far as Section 29(2) is concerned, I think members of the legal profession from Ontario who are present will certainly remember the chaos which was created in our province a few years ago when the Family Law Reform Act was implemented almost immediately after its proclamation. The legal profession, the officers who had to administer or observe the law, men and women who were directly affected by that law, all had many, many problems, because it just was proclaimed one day and suddenly put into effect the next day. It was almost impossible to deal with it, because that law cut across so many other laws.
I think there needs to be a transitional period. I am not arguing for three years. I think it is going to take three years to amend all of the laws which might be affected by the provision of this charter.
But I have been looking at it there, and it seems to me that this section could be amended in some way to suggest that if any statutes are amended which will be affected by the provision of this charter, can be amended and proclaimed in the meantime, they could come into effect immediately, but in no case later than three years down the way.
I quite understand your concern, and the concern of the many women that you are representing, that three years is a long way down the line as it appears to be. But I think, in very practical terms, a transition period of some kind is necessary, and probably the periods could be allowed to vary depending upon the laws involved. Would you feel that kind of amendment would be acceptable?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: Well, there are several points here. On Sections 24 and 25, we do not feel that Section 25 is an adequate adjunct to Section 15. Section 25 says that laws which are contrary will be inoperative. Contrary to the charter, but what provision of the charter? You see, the Indian Act is contrary to Section 15(1) of the charter, but it is not contrary to Section 24 of the charter. So there is an ambiguity there, it would have to be interpreted by the courts and the courts have been terribly bad on these issues. We would have to trust the Supreme Court of Canada really to understand and to come out, given that there is an ambiguity and to treat the equality as being the more important consideration there, and we do not have confidence that that would be the decision that would be made. We do not think it should be left to chance, we do not think there should have to be litigation for years in order to find out what would happen.
On the moratorium, let me emphasize that on the question of the native women’s rights, the discrimination has been known about for years and it has been complained about for years, it was a recommendation of the Royal Commission on the Status of Women in Canada, that report was tabled in Parliament almost ten years ago. In a couple of weeks it will be ten years ago.
This has been known about for a long time. that there are wordings—it would not take a long time and it has been a lack of political will, it has not been the necessity of working out detailed legislation or administrative procedures. We certainly have been lobbying on issues of housing, for example, which would be relevent to this for a long time. We just do not think there is any excuse for this ten year moratorium—pardon me, a three year moratorium. A Fruedian slip there.
If I could just raise a point that came out. earlier in discussion that I am wondering has left a misimpression about redress of native women’s rights. In the case of Sandra Lovelace, who has gone to the United Nations, that does not give her any redress of rights. What will happen if Sandra Lovelace wins her case is that Canada will be condemned for having discriminated against her but that does not give her back her rights. So it requires repeal of Section 12(1)(b) of the Indian Act or a very clear statement here in order for native women to get redress. There is no other wkay around it.
Senator Neiman: I quite agree with that, Ms. McDonald, and it has been a long time overdue.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): We want to thank the National Action Committee on the Status of Women for being present today and for your brief. We appreciate you coming and as a matter of fact we are honoured. However, your time is up and I was just wondering why we do not have a Section 1n here for babies and children. All you girls are going to be working and we are not going to have anybody to look after them.
Mr. McGrath: You would have been better off, Mr. Chair: man, if you had just used your gavel.
Miss Campbell: It is a good thing the charter is not passed.
The Joint Chairman (Senator Hays): In any event, we appreciate your being here this afternoon and some of our members may want you back, Thank you very much.
I am now going to entertain the submission from the Canadian Bar Association, the Newfoundland Branch, and they are represented by Mr. Raymond Halley, President, and Mr. Michael F. Harrington, Mr. James R. Adams, Mr. Paul Stapleton and Mr. Clyde K. Wells.
We expect you to make a brief statement and then I will call the questioners.
Mr. Raymond J. Halley, Q.C. (President, Canadian Bar Association, Newfoundland Branch): Thank you, Mr. Chairman.
My name is Raymond Halley, I am President of the Newfoundland Branch and with me is Mr. Edward Hearn.
Firstly, we have made a written submission which we have presented and I would like to apologize for the typographical errors and spellings because we had this in draft form and we were advised yesterday morning that we were to come on today and it was fairly frantic to get it together. I would like to stress that this submission is made on behalf of the Newfoundland Branch, it will deal with the constitutional proposes as they affect the province of Newfoundland. We neither require nor have the sanction of the Canadian Bar Association, which I am told will be making its submission next week and with which we will totally agree with the submissions they will make on a national level. We intend to just highlight the written submissions we have made.
First of all, the branch consists of approximately 80 percent of the lawyers in Newfoundland, it is a voluntary organization. We felt it was necessary to make this submission to this Committee, Mr. Chairman, because of the polarization of positions taken by the federal and provincial parties in our province.
Mr. Chairman, following numerous efforts at constitutional review in the recent past, and in particular the solemn promise made by the people of Canada through their legislatures and by their premiers and by the unanimous resolution of the Parliament to the province of Quebec, we feel that constitutional change should take place and it should take place now.
Newfoundlanders cherish their status as Canadians and we wish to voice our concerns as Canadians to ensure that the constitution protects not only the legitimate concerns of Canadians, but the legitimate concerns of our province.
We will dwell on the particular concerns of Newfoundland and we hope to deal with them frankly and openly. Above all we would like to point out that we recognize that this nation of Canada has to be preserved. that it has recently gone through a severe internal challenge, and that constitutional change is essential not only because it was promised but because it is
needed for the preservation of this country. We wholeheartedly support patriation of the constitution to Canada from Britain.
During the late forties Newfoundlanders in a national convention considered terms of union that were presented by Canada, These terms were debated for approximately a year and a half and after deliberation in a referendum Newfoundlanders chose to join Canada. Newfoundland became a province of Canada at midnight, March 31, 1949.
These terms of union, which have been the centre of debate in our province concerning these constitutional proposals, confirm the Labrador boundary decision of the Privy Council which was given in 1927, and also provided for the organization and funding of our denominational, educational school system. Newfoundlanders have always believed that the terms of union could not be changed without the consent of the people of the province.
Mr. Chairman, since 1949 Newfoundland has made great strides within the Canadian Confederation and if a referendum were held today there would be an overwhelming vote confirming our status as a province of Canada.
The fact is, however, Mr. Chairman and members of the Committee, that Newfoundland has public services which are less than those enjoyed by other Canadians. This province has the highest per capita debt, the highest rate of unemployment, the highest rate of taxation and the highest cost of living. It is therefore essential that any changes in the constitution of Canada must recognize our resource potential and it must ensure that Newfoundland is given the ability to develop and manage its resources in a manner that would make it a viable economic component of Canada.
As far as the method of constitutional change is concerned, we take the position that it should be patriated without change and that the changes should be made by Canadians within Canada.
Regarding the Charter of Rights and Freedoms, there are two issues there, Section 2 concerning freedom of religion and Section 6 concerning the mobility provisions. Section 17 of our Terms of Union, as I mentioned, provide for the preservation of the denominational school system but also provide that these schools be funded publicly.
There is concern, and we also expressed it, that the right of freedom of religion which is inherently good could be interpreted by the courts, as has been done in the United States, and could be detrimental to these denominational schools and their funding. Our concern is heightened in that Section 25 of the act provides that any law which is inconsistent with the provisions of this charter is, to the extent of such inconsistency, inoperative and of no force.
We recognize that there are two points of view with respect to this matter concerning freedom of religion: one is by virtue of Section 25, term 17 would become inoperative, not binding;
and the other view is that in our courts, in the Canadian courts they will view the definition of freedom of religion in light of Section 17 and in light of the history and tradition of the denominational, educational school system in the province.
With regard to Section 6 dealing with mobility rights of Canadians, we certainly agree with this provision in principle. We are concerned in the province that despite the affirmative action provisions of Section 15(2), the local employment preference provisions of our petroleum regulations may be ruled invalid by the courts. Particularly when reference is made to Section 6(3)(a). We feel that this Committee should give consideration to a designation of a province such as Newfoundland as a disadvantaged area. This would justify the province in enacting local employment preference provisions, on an interim basis hopefully, and of course these preferences would be eliminated when the economic benefit of the offshore resources put the province on an equal footing, not even with other Canadians but with the other members of the Atlantic Region.
Just as we agreed with the principle of mobility rights for individual Canadians and that these should be entrenched, we also feel that the same argument would apply to the guaranty of mobility of goods, capital and services which would ensure that the economic barriers can not be set up by one province against another province.
With respect to the Part V amending provisions, in western democracies the prime function of a constitution has been the protection of minorities. We see in the United States those minorities, mostly ethnic, however in a country the size of Canada, with the sparse population. the Canadian constitution should protect not only ethnic minorities and the like, it should also protect regional minorities such as the people of the province of Newfoundland who form a very small portion of the population of Canada.
In the province at this time there is much discussion on the amending sections and to the relationship that they would have to changing the terms of union. The two terms of union that are of much concern or of most concern is the boundary issue, and I think members of this Committee know, and yourself, Mr. Chairman. that the only disputed boundary, not from our position certainly but from others position, is that of the boundary between Labrador and Quebec. This is a concern I think solely of Newfoundlanders at the present time. It is our view that the terms of union, including the boundary and denominational system, could be altered without the consent of the Province of Newfoundland under the proposed amending formula, those contained in Sections 41 and 42.
Now, there has been a view expressed that the terms of union formed a contract between Canada and Newfoundland and could not be changed under the formula as proposed. We disagree, we feel that the terms of union had no effect until
they became and were incorporated into the British North America Act of 1949, and only then did they become legally enforceable and consequently they form part now of the definition of the Canadian constitution and can be amended under the amending formula.
It has also been suggested that Section 43 could protect a province from having things unique to that province changed without its consent, and we suggest that that is not a proper reading of Section 43 in that it is a permissive section and really only provides a short-cut mechanism to amend the constitution when one or more but not all of the provinces are involved.
In order to give protection to Newfoundland and to regional minorities we would suggest that Section 43 be amended to provide that constitutional amendments affecting one or more but not all of the provinces can not be passed without the consent of the province or provinces affected. We also view the Victoria Formula as a difficult one, especially when you consider the Atlantic Region, and if the 50 per cent rule were dropped you could have the Atlantic Region going along with a referendum, under Section 41 or Section 42, with Prince Edward island and Newfoundland joining together, who together make up less than one third of the population of the region. This could happen out West but as difficult as the Victoria Formula may be in practice, we feel that it is probably the best that we can hope for at the present time and we agree, Section 41 we have no real quarrel with.
The referendum formula under Section 42 we suggest is completely unacceptable. This would change basically the makeup of Canada and the relationship of the provincial governments and the federal government. There has really been no discussion of the referendum formula idea and we feel that the proposal for amendment by referendum at the present time could not obtain the support necessary to satisfy the criteria established in the constitutional proposals under Section 41, in that six provinces, 50 per cent of the population, there is no support for the referendum formula even to that extent and it seems to us improper that an amending formula should be passed when it can not even meet the same level of support which would be required hereafter to pass amendments. We feel that the referendum Section 42 would shift the balance of power on constitutional matters in that the federal government would always have a trump card, could always go past the provincial governments and call a referendum under which they would phrase the question, they would make the rules, and we feel that this particular amendment presents the greatest danger to Newfoundland.
Canada is a country that has been plagued throughout its existence by the lack of understanding of one region to another, and in this we find it ironic that Section 41 lumps Newfoundland into the Atlantic Region, and although that
may be convenient, the province of Newfoundland has never had very strong ties with the maritime provinces. It participates in some Atlantic province associations, however it has strongly resisted taking identical positions with the three maritime provinces and this is illustrated on issues such as maritime unity and on offshore. To suggest that a bare majority, perhaps even less than a majority of voters in two of the other Atlantic provinces could satisfy the regional requirement for the passage of a constitutional amendment contrary to the interests of Newfoundland is not acceptable.
For instance, a referendum could be proposed to create one province in the Atlantic area. Under the existing referendum formula every voter in Newfoundland could vote against this proposition and it would still pass.
The final point I would like to make before passing it on to my colleague concerns Section 54 of the act dealing with the translation of the constitution into the French language. We support the concept that the constitution of Canada should be in English and French, and we also support the view that they should be both equally binding. We are concerned that the proposal suggests that the constitution of Canada. which has been in the past, is now to be translated into French and this is to be done by the federal government without any input from the province. This would concern us especially in that this would also include the delineation of the boundary as set out in the Privy Council decision between Quebec and Labrador.
Although these concerns are important and I do not want to diminish them, I would ask Mr. Hearn new if he would go over the most significant part, I suggest, of our submission.
The Joint Chairman (Senator Hays): Mr. Hearn.
The Joint Chairman (Mr. Joyal): Mr. Hearn.
Mr. Edward M. Hearn (Member, Newfoundland Branch of the Canadian Bar Association): Mr. Chairman, it is important in assessing the constitutional proposals of the federal government to briefly summarize the economic position of our province. The province has been and is the recipient of large amounts of federal grants which have contributed greatly to the economic development of this province.
It may come as a surprise to most Canadians that Newfoundland contributes more in economic terms to Canada than it receives. We refer to the tremendous economic contribution to the Quebec economy arising out of our hydro development on the Upper Churchill as well as our iron ore resources in Labrador West, Wabush and Knob Lake. The Economic Council of Canada conservatively estimated that Quebec receives some $600 million in direct annual economic benefits as a result of hydro power supplied from the hydro development on the Upper Churchill alone. This exceeds the annual amount of transfer payments from the federal government to the province by way of equalization payments and unemployment insurance benefits. At the same time, Quebec also receives annually substantial economic benefits from the development and processing of our Labrador iron resources.
While Quebec receives upwards to $1 billion annually from our Labrador resources, our province is in severe economic straights. We have the highest rate of unemployment and the lowest level of public services in the country. Despite the considerable amount of federal financial support, Newfoundland has incurred a debt in the amount of a little less than $3 billion to reach its present level of development. This crushing debt level is by far the largest per capita debt of any province in the country and is comparable to the debt ratio experienced by the poorer Third World countries.
Newfoundland contributes more to Canada than it receives and at the same time, it is a so-called have not Province. It is from this perspective that the constitutional proposals have to be considered in relation to Newfoundland. indeed it may be fairly said that present constitutional strictures have made it difficult for our province to alter the present distribution of wealth from our resources.
One of the objectives and we would suggest legitimate objectives of the constitution of Canada is the integration of the Canadian economy. The free circulation of goods, services, capital and workers has not always been adequately protected under the British North America Act. We are strongly in favour of improving and protecting the Canadian economic union. Yet, in considering that, let us look at interprovincial transmission of hydro power.
The proposed Constitutional amendments do not address the legitimate demands of Newfoundland to be entitled to market its hydro resources without being unduly restricted by the intransigence of a neighbouring province. While it is questioned that at the present time the constitutional authority resides in the federal government to regulate interprovincial transfers of electricity. there is no available mechanism to compel the federal government to exercise its jurisdiction.
The National Energy Board provides a mechanism whereby pipeline companies can obtain the right to expropriate a right-of-way for a pipeline. There ought to be a mechanism. similar to that contained in the National Energy Board Act for pipelines, to deal with interprovincial and international hydro power transfers which ought to include provision for the expropriation of a power corridor if it can be demonstrated to be in the public interest as well as economically feasible.
The perceived failure of the federal government to respond to the legitimate demands of our province with respect to hydro highlight the necessity of a provision in the constitution whereby a province can compel the federal government to exercise its authority where it can be shown to be in the public interest. The Newfoundland experience with hydro power clearly demonstrates that the political process can result in the undue restriction of the rights of smaller and poorer provinces.
The commitment to an economic union as exemplified by the mobility of labour clause appears hollow when one province can be allowed to impede the development of resources in another province. Surely mobility rights should be extended to include mobility and free interprovincial access of goods, capital and services.
The time, Mr. Chairman, for constitutional renewal seems to be the appropriate time to establish and reaffirm an absence of economic barriers in Canada. If the rights of smaller and poorer provinces are to be protected, then a province has to be given some means of initiating the process to obtain its right to develop its natural resources for its own benefit as well as for the benefit of Canada.
During the present constitutional debate, there has been a dialogue between the New Democratic Party and the federal government with respect to the rights of the provinces to manage and control their own resources.
A tentative agreement was reached between the Prime Minister and the Leader of the New Democratic Party with respect to the provinces rights in those areas of management and control of certain resources as well as indirect taxation and concurrent jurisdiction in the interprovincial trade. We support those initiatives. Yet the exchange of correspondence between the Prime Minister and the Leader of the New Democratic Party excluded hydro resources from the proposed amendment. This Committee made strong representations to all political parties in Ottawa that hydro ought to be included in that amendment.
The Minister of National Revenue who is Newfoundland’s representative in the federal Cabinet has recently indicated that hydro will be included. Subject to any reservations on the particular wording chosen, we are strongly in favor of the granting and confirming to the provinces the power to manage and control their own resources including hydro, to indirect taxation and to concurrent jurisdiction in interprovincial trade subject to federal paramountcy and so long as such rights do not unreasonably discriminate between the province and other parts of Canada. We laud the efforts to accomplish this result for its economic impact on our province could be significant.
A time of constitutional change is also a time for remembering past experiences that have contributed to the development of Canada. An examination of Canadian history furnishes many examples of transfers of resources to the provinces to ensure that a province becomes a viable economic unit. Quebec and Ontario were each ceded large tracts of northern territory by the federal government. Several prairie provinces were created without ownership of their natural resources and these were voluntarily ceded to them by the British North America Act (1930).
There is both justification and compelling necessity for the federal government to follow the same sensible precedents of the past and confirm provincial jurisdiction with respect to
off-shore resources. it should be emphasized that all the provinces of Canada are in favour of this action.
The National interest will continue to be served by the federal paramountcy powers with respect to interprovincial trade as well as the federal taxation powers and the federal powers in respect to peace, order and good government. These powers still allow a reasonable and fair portion of revenues to flow to the federal government consistent with the aims and objectives of that Government as expressed and embodied by the national energy policy unveiled last month.
Unquestionably, the greatest beneficiary of such a transfer of resources would be the Province of Newfoundland. The economic factors already mentioned clearly illustrate that the province has to be given access to its resources if it is to be able to repay its enourmous debt and still provide a reasonable level of public services. This initiative is especially justifiable when one considers that geographic factors render it difficult for our province to benefit from such measures as the extension of the natural gas pipeline.
Mr. Chairman, if the federal government is not going to accede to our request for confirmation of provincial off-shore jurisdiction, we would at least request that Item 6 of Schedule 1 of the Constitution act, 1980 be deleted entirely. This section purports to repeal the references in the Statute of Westminster to Newfoundland as a dominion. There is some concern that this could weaken the province’s position in a legal battle to resolve ownership of off-shore minerals. Of course, if the federal government accedes to our request that the provincial off-shore rights be confirmed subject to federal paramountcy, we do not object to any housekeeping with respect to the Statute of Westminster.
We would note that these measures are probably unnecessary since under the Terms of Union the Statute of Westminster 1931 now applies to Newfoundland in the same manner as it applies to other provinces of Canada.
With respect to equalization and regional disparities, Part II of the constitutional act, 1980 deals with equalization and regional disparities. We support the commitment that the federal and provincial governments of Canada are committed to:
(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering economic development to reduce disparity in opportunities; and
(c) providing essential public services of reasonable quality to all Canadians.
We suggest that Section 31(2) be amended to clearly provide that any equalization payments to be provided by the federal government should be made directly to the provincial governments rather than by way of direct infusions of federal funds into the economy of the provinces.
Mr. Chairman, in conclusion we would state that although the people of Quebec recently chose to remain part of Canada by referendum, the first referendum by which people chose to become Canadians took place in Newfoundland in July of 1948 and although at that time it was supported by less than
53 per cent of the voters, undoubtedly today a vote concerning membership in the Canadian union would be unquestionably and overwhelmingly in favour of Canada.
We favour patriation of the Constitution but urge that the amending formula and other changes in the constitution should be made in Canada by Canadians. Newfoundland would like to be assured that its boundary and other cherished traditions will not be changed without the consent of the government of our province.
Although there are features of the Section 41 amending procedure that appear logically inconsistent we accept that it is probably the only amending formula that has received any degree of consensus in Canada. We urge rejection of the referendum formula provided for in Section 42 as it will change Canada from a parliamentary Confederation to a republican populous system of government. It is a formula which has had little national dialogue and has not been given the benefit of discussion at Federal-Provincial Conferences or by this Committee, the Parliament of Canada or the provincial legislatures. Newfoundland’s constribution to the economy of Canada should be recognized and there should be constitutional changes which would permit Newfoundland to develop and access its resources unimpeded by provincial boundaries.
Our Committee thinks that the federal government should follow the recommendations of the provinces and confirm provincial jurisdiction with respect to off-shore resources, subject of course to federal paramountcy.
We also urge the federal government to extend the time limit for consideration of the constitutional proposals. We suggest that the Joint Senate and House of Commons Committee be permitted to visit each of the provinces of Canada and its territories and receive further written and verbal submissions. The will of Canadians concerning constitutional proposals should not be confined to political polls, but the expression of Canadians should be invited and encouraged by perhaps a longer dialogue than is presently the case. In conclusion, I would like to thank the Joint Chairman and members of this Committee for the opportunity of making a written and oral submission on behalf of the Newfoundland Branch of the Canadian Bar; and we thank you for your patience, attention and interest.
As Canadians, we wish you success in your deliberations.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hearn. Mr. McGrath?
Mr. McGrath: I would like to commend the Newfoundland Branch of the Canadian Bar, Mr. Chairman, for their excellent brief and also I would like to commend them for being very quick off the mark in getting their request into the Committee for permission to appear. Other groups across the country, because they did not show the same quick reaction, will be less fortunate.
Mr. Chairman, I will try not to use up all of my time because of the limited time we have left, because I know there is interest in this brief, in order to allow other members an
opportunity to ask some questions. But there are two or three questions that I would like to put to the witness.
First of all, when the Minister of Justice was before the Committee. in reply to a question he indicated to me that under the present constitutional arrangements, the present British North America Act, the Government of Canada had the right unilaterally by an address to the Parliament of Westminster, without recourse to the government or Parliament of Newfoundland, to change the Terms of Union between Newfoundland and Canada. He held that to be the legal position of the Government of Canada.
I would ask you as representatives of the Bar of Newfoundland, how would you react to that?
Mr. Halley: It is our position that we do not subscribe to the conventions and customs of the past that amendments requested of the BNA Act involving the jurisdiction of the provinces or province has always been done with the consent and concurrence of the province, so that an address was not made by the federal government alone, It was acceptable, certainly, if the amendment were to involve federal jurisdiction alone, but if it involved the jurisdiction of the provinces it was not acceptable. This was pointed out in the recent Supreme Court of Canada’s decision involving the suggested amendments of the federal government concerning the Senate.
Mr. McGrath: Mr. Chairman. Newfoundland is in a sense, in terms of its constitutional relationship to the Government of Canada, unique in that that it was the only one the ten provinces that entered the union with its sovereignty intact under the Statute of Westminster and there is no other province that has terms written into the constitution which were entered into between two sovereign dominions. Of course, on that basis, we rest a great deal of our case in terms of our right to the off-shore jurisdiction.
But there were two very important provisions in the Terms of Union which have been referred to by my friends from Newfoundland. One had to do with the Labrador boundary, the boundary between Newfoundland and Quebec, and the other one had to do with the denominational system of education. I will confine myself to the latter for the moment.
Under Term 17 of the Terms of Union which protects Newfoundland’s unique denominational system of education, there is a limitation placed on the legislative power of the Newfoundland legislature and the Parliament of Canada. That, in my opinion, and I presume that this view is held by the witness although it was not clearly defined in what you had to say in your brief, that balance has changed. Yet the present provisions of the draft bill before us are inactive.
Mr. Halley: There is concern with respect to Term 17 from two quarters, from the freedom of religion provisions in the charter and also from the amending provisions.
Mr. McGrath: Just confined ourselves to the amending provisions for the moment because the thrust of what I am saying is that the amending provisions of the bill before us, Section 42 and the referendum powers contained therein, does have the effect of changing that balance and does in fact lift the legislative limitations, to legislate in the area of denominational education on the part of both the Legislature of Newfoundland and the Parliament of Canada. Is that correct?
Mr. Halley: That is the position that I have heard only infrequently before, that there was concern that the provincial legislature would deal harshly with, you recall, Newfoundland were the one who insisted on Term 17 and it is, I would say, inconceivable that the government of the province of Newfoundland would ever attempt to change the denominational school system. But it is possible, of course.
Mr. McGrath: Yes, but the legal implications is what I am directing to you as an expert witness. We have heard about the good intentions of the present government through the Minister and we are not really concerned about good intentions because we are dealing here with a constitution that will have to last for 100 years and we are concerned about what happens to people who succeed the present government. I am talking about legal implications, is it legally correct?
Mr. Halley: No question, it is theoretically possible under the amending formula that these rights would be changed.
Mr. McGrath: Okay. Then could I get back to your concerns expresed under Section 1, under the Charter of Rights and the implications it has for the denominational system of education as enshrined in the present constitution under the Terms of Unions, Section l7 and under the umbrella of Section 93.
Mr. Halley: The concern there is the definition of what freedom of religion means. In the United States it has been defined as freedom of no religion, The particular section that we have concern with is the Section 25 of the charter. Section 25 provides that:
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.
So what we are left with is how will the courts define the term freedom of religion as it applies to education? If that definition is similar to that of the courts in the United States, there will be very significant problems.
We feel that there may be an argument made that the courts of Canada would deal differently with it, but if this is a legitimate concern, which we feel it is, then it should find expression in an amendment to Section 43 which would provide that no such change of any of our terms, including Term 17 would be made without the consent of the province.
Mr. McGrath: But, surely, is that section not more than offset by the provision of Section 47? Have you read Section 47 carefully in its relationship to Section 43?
Mr. Halley: Yes. Well, Section 47 itself can be changed by Section 41 or 42.
Mr. McGrath: So there is no protection there.
Mr. Halley: No, and Section 43 is no protection as it is now phrased. We are suggesting an amendment at least now in Section 43, to provide that the province must consent to a change which would include the change of Term 17.
Mr. McGrath: You mentioned your reservations about the amending formula. You mentioned the Victoria formula. Are you aware of what is now known as the Vancouver Consensus?
Mr. Halley: Yes, we are.
Mr. McGrath: Have you studied the Vancouver Consensus?
Mr. Halley: Yes.
Mr. McGrath: In your opinion, would that be more acceptable to Newfoundland or would that be more protective of Newfoundland’s rights under the Terms of Union?
Mr. Halley: With the caveats that are contained in that, which would require consent of the provinces, that is the matter you are referring to, I think.
Mr. McGrath: I can conclude to allow other members an opportunity, by asking this question, Mr. Chairman. This is a question of general information. In your opinion, does the view represented here by the Newfoundland Branch of the Canadian Bar Association represent, to the best of your knowledge, a consensus, or does it reflect any consensus of concern in the province over (a) the unilateral nature of what the federal government proposes to do and (b) the substantive nature of what it proposes to do?
Mr. Halley: The problem we have is in the time structures. These proposals were suggested, I think, in early October. There was a furor at that time concerning the amendments in the political circles in Newfoundland to such an extent that we felt that we must at least, as responsible Newfoundlanders, look at the thing independently, which we have done.
We worked very hard. We had a very short time frame. This is our best effort in the time we were given.
There have been no other groups which would have had an opportunity to do this, unless they were off the mark, as you have mentioned immediately, which we have done in this case. The unfortunate thing is there has been no dialogue from anything other than the political parties.
Mr. McGrath: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Mr. McGrath.
Mr. Nystrom: Thank you very much, Mr. Chairman, I wanted to ask questions in about two or three areas.
You have spoken about the off-shore and about the need for similar powers to be given to Newfoundland or the coastal provinces for off-shore resources. You have referred to the fact that you prefer to see concurrency powers with federal paramountcy. is this the same position taken by Premier Peckford in the Newfoundland government or is it a different position from the Premier?
Mr. Halley: I think by and large our position is very similar to that taken by the province. When we mentioned federal paramountcy, it is only recognizing the fact that it is already contained in the constitution which is not attacked by the province or anybody else. Paramountcy powers in respect of a lot of areas, general emergency powers. So I would say we are substantially in agreement with the government of the province.
Mr. Nystrom: So what you are asking for is that the same powers which now pertain to resources on or under land, that those same powers should be extended to the offshore?
Mr. Halley: In substance, yes.
Mr. Nystrom: You also made a comment about your concern about the French translation of the constitutiona proposals. I would like you to elaborate a bit more on what you meant by that. You were referring to the boundary between Labrador and Quebec, and that is the first time that has been raised. You did so without elaboration.
Mr. Halley: Well, under Section 54, all documents which form part of the constitution are to have equal force in either language.
While we do not have any objection to that in principle, it should be noted that there are past constitutional documents that were actually signed in one language and not in two. At the time the Terms of Union were completed between Newfoundland and Canada, my understanding is that they were drawn in English only, and we feel there ought to be a clearly established right of both parties to the partnership, certainly the province and the federal government, to have input into the translation, so that you do not have one party to the federal arrangement deciding on a translation: We know that a translation is to be the same but it can result in differences in interpretation.
Mr. Nystrom: I think that is perfectly reasonable. In the resolution before us, for example, Section l, one finds the wording in French and in English and inadvertently, there could be different wording which could be very important for courts in years to come. I suppose that is the point you are trying to make?
Mr. Halley: Yes.
Mr. Nystrom: You also referred to the importance of equalization in Newfoundland. I would assume from your comments that you are concerned about the way Section 31 is written, where there has been no reference to the word “equalization”, except in the title, where it refers to “equalization” and to “regional disparities”.
Mr. Halley: Yes; and there is no reference to equalization payments whatever. There is no reference to the fact that the money has to go to provincial governments to spend as they think fit which has been the practice historically in this country.
Mr. Nystrom: I would assume what you want to enshrine is the principle of equalization payments and those payments going directly to provincial governments?
Mr. Halley: Yes; we would not like to see a situation such as federal make-work projects and things of that nature. Those types of transfer payments being considered as equalization.
The provincial government has the responsibility for dispensing a certain level of public service and the poorer provinces in this country can only do that by way of equalization payments, and it could result in a tremendous accretion to federal power if they could by-pass those provincial governments by initiating their own programs.
So we feel the concept of equalization as a valid and a legitimate principle, ought to be embodied by way of transfer payments to the provincial governments themselves rather than any payments which a federal government might wish to make in the province, for example, DREE or make-work projects and things of that nature.
Mr. Nystrom: This afternoon you also referred to some of the problems of the Newfoundland and how the federal government could change this through the referendum procedure without the consent of Newfoundlanders. I know your Premier has made the same charge and it has been denied by some government spokesmen, such as the Prime Minister.
Is there anything else you would like to add to what you have already said to us on that? I know that Newfoundland’s position is very unique to the federation and Mr. McGrath spoke about the fact that under the Statute of Westminster, Newfoundland had sovereignty before it came into the country, and it is also the only province which came via a referendum; in fact, two referenda were held before it came into Confederation.
Is there anything else you would like to add, other than what you have already said about Newfoundland?
Mr. Halley: I think the only additional thing would be to make the point that if this is not the concern of anybody else, then surely nobody is giving away very much by entrenching as a sacred right that the boundary of a province shall not be changed without the consent of the province, notwithstanding any other amending provisions. If that is not a concern of other people, but is perceived as a concern of others, well then that would answer all our problems.
Mr. Nystrom: You raised a point today which I do not believe was raised before in the Committee or in the House in the constitutional discussion. It concerned constitutional amendments made at page 13 of the resolution, and Section 43. That is where a constitutional amendment can be made bilaterally between a province and the Parliament of Canada by both of them passing resolutions in their assemblies and in the Parliament of this country. where it affects one or more, but not all of the provinces.
You have suggested something which I do not think anybody else has suggested, namely, that where that is the case, where it affects one or more but not all of the provinces, then perhaps we should be considering ait amendment here, that
there cannot be any change to Section 42, which is the amending formula or the referendum, without the consent of the provinces. I believe that is what you were getting at, is that right?
Mr. Halley: Our point was that Section 43 could be excluded from the general amending provisions and given entrenchment in its own right and not be subject to change.
We feel the general amendment provisions of the act would not be hampered unduly if a proposed amendment that related to one or more but not all the provinces required the consent of the provinces affected.
Mr. Nystrom: It is also something that a couple of other groups will refer to as creating special problems. I believe the Franco-Manitobans tomorrow would be saying to us that there are problems in this area as well.
I think, Mr. Chairman, those are the only questions I have, unless you can elaborate a bit more on some of your concerns about Item 16 of the Schedule. You have made some comments on that today. Is there anything else which you would like to elaborate on?
Mr. Halley: I think that we should not overstate the reference to Item 16. There is some concern, and we make no value judgment as to the extent of that concern, that it might have some effect on our off-shore position if we are involved in a court dispute resolving that. Rather than having it raised, or if the concern is that it might, in any way, detrimentally affect us, then we would prefer it not to be there at the present time. But we are not trying to overstate that as a position that it will detrimentally affect us at the present time.
Mr. Nystrom: This will be my last question, Mr. Chairman. You also state, on the mobility rights, that would be Section 6, that that should be broadened to include the free flow or access of goods. services and capital.
Again, it seems to me that is a different position from that of the Premier of your province. I know some people, over the summer, at the CCMC meetings have raised a lot of concern about the total free flow of goods, services and capital. which might affect affirmative action programs, and might affect in terms of the free flow of capital, some of the provincial monopolies like the automobile insurance plans and the like, and P.E.I. lands is another possibility, and Mr. Henderson is concerned about that.
Frankly, I was surprised to see that you included that in your proposal. I wonder if you would like to elaborate on why you are doing that.
Mr. Halley: Well, Mr. Nystrom, we do not always consult with the Premier in making our proposals, nor does he always consult with us in making his.
However, we are concerned with the question of Canadian economic union. We feel, generally speaking, that barriers ought to be kept to a minimum. We feel there have to be exceptions to any general rule, and there can be dire economic circumstances which require exceptions. Perhaps the present Newfoundland regulations fall within that category.
But certainly, the general principle ought to be established not to be limited simply to mobility of labour, and if there are exceptions. generally speaking, we would hope that there would be interim measures rather than entrenched provisions: that goes to mobility of labour as well as of the right to hold property and to pursue a livelihood and those things.
But we feel that it is hollow to concentrate on that when one can be in the invidious position or in a position that another province can actually impede your right to develop resources. So we want to concentrate on the integration of the Canadian economic unit, and we feel we should pursue the whole picture rather than looking at one small item. That is our attitude towards the mobility of labour, and it may very well be we might take a different view from that of the province, though I am not entirely sure that we do.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Nystrom.
Mr. Tobin: Thank you very much, Mr. Chairman.
I would like to join my colleagues in welcoming the Newfoundland Branch of the Bar Association and in congratulating them on their very fine brief and presentation.
I certainly welcome the sober and obviously well thought out position you have taken and the manner in which you have presented your brief.
I have picked up one of your comments about the level of debate between political parties, and I must say that this kind of sober discussion is certainly welcome, and indeed, has been very necessary.
Now a couple of matters. First of all I might mention that on Section 54 you have expressed some concern that it is possible for the Terms of Union to be translated and to be enacted in law without the consent of Newfoundland. It is my understanding—in fact, I had asked some questions of constitutional officials here in Ottawa earlier, whether or not, if you look at Section 54, taking it from the middle:
it shall be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant.
And these are the important words:
to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.
My question on this very matter you have raised is this. I have been told that in fact, what that means is that a French version of the terms of union could not have the power of law in this country without the consent of the legislature of Newfoundland. I will say to you that I will ask more questions about it, but I would ask you to consider what I have just said. I think it may allay your concern that in fact, a French version would not have the power of law until such time as that version had the consent of of the Legislature of Newfoundland.
Mr. Hearn: It would work if it were done under Section 43 where the consent of the province of legislature was necessary. If the amendment was done that way, all right. But if the amendment was not done that way but was done under Section 41 or Section 42, it is possible it could be done without the consent of the province.
Mr. Nystrom: As I say, I would ask for further clarification of that matter and I might have a chance to talk to you about that later. But that brings me up to my next point.
On Section 43, Mr. Halley and Mr. Hearn, I and a group of Newfoundland MPs have met with the Justice Minister and some of the people who were responsible for drafting this document. Over our concern with respect to the boundary and any concern that may be expressed regarding any denominational, eductional school system in Newfoundland, which is unique to our province, we have asked that an amendment or a change be provided in this act that would spell out that where an amendment applies to one or more, but not all provinces. or when an amendment applies to one province, Section 43 would apply, not Section 41 and not Section 42. I have no guarantees; but that is certainly what we are looking for. Would that kind of clarification of what is obviously our intent of this legislation, be welcomed by you and your colleagues?
Mr. Hearn: Certainly, we will welcome that type of clarification. However, unless also extended to ensure that Section 47 was likewise amended so that the procedures proscribed by Sections 41 and 42 could not also be used to amend Section 43, then we do not feel that it would completely answer the problem.
Mr. Tobin: But would you say it would be a positive step?
Mr. Hearn: It may very well be a step forward making it a little more difficult but it certainly would not completely answer the problem.
Mr. Tobin: Now, I want to go back to the concerns that you have raised and the premise of your concerns. You talked during your comments about sacred rights that the Province of Newfoundland has or has always had with respect to education, jurisdiction with respect to jurisdiction over its borders as spelled out under the Terms of Union, term 17 and Section 2 of the Terms of Union.
Would you not agree that it is indeed in a strictly technical sense possible for the Parliament of Canada, the House of Commons and the Senate, in a joint resolution to the British Parliament and has always been to request and ask for any change to the British North America Act, whether it be any section of the BNA Act or the Terms of Union, for that matter. lam not asking if it is right or if it is wrong. if it meets the traditions or standards, I am asking strictly in a technical sense is it not possible to do that now?
Mr. Hearn: There are two views on that: one is that a request could not be made by one party to the Confederation without the consent of the other party, or without the consent of the province or provinces affected. The other view is that the constitution being an act of the British legislature, if the British Parliament itself wished to make the change, that that
would be legally effective regardless of whether or not it had the consent of the federal government or any of the provinces. That is a subject of much debate at the present time.
Mr. Tobin: Well, I would simply point out to you with respect to the comment about sacred rights of Newfoundland or any other province in Canada, in a strict technical sense, a hypothetical sense, it is my view that it is indeed possible right now, and I think the fact we are going to the British Parliament now for repatriation, an amending formula and a charter of rights, and that the British Prime Minister has indicated that will be granted is evidence enough that such an approach is possible. That in itself indicates to me that technically, not politically or what is reasonable or rational, that such a procedure is possible and, therefore, no province, Newfoundland or anybody else, has ever had any sacred rights.
Now, when you assume that you can go now without the consent of any province, without consulting anybody outside of Parliament and have changes made to the British North America act or to our constitution if you want to call it that, it appears to me that under the provisions contained in this new resolution the task of acquiring amendments on any matter becomes much more complex because you are talking about an approach that would require the consent of the majority of the people in this country before you could change the constitution once patriated as the Canada Act 1980. So the procedure becomes more complicated. Is that a fair observation?
Mr. Hearn: I think that you are discussing the question of whether or not the conventions are now embodied in the constitution or not and that is really a legal question that the courts will have to answer and I am uncertain myself as to how the new procedures will work and whether or not they would make it more complicated than they are at the present time. I could not be sure.
Mr. Tobin: I simply want to ask you. there are a couple of other matters I want to raise but I want to ask you one other question on this line of thought, and it is this: I think there is a need for clarification perhaps while we have the advantage of television here and an audience back home. Would you not agree that this constitutional package as now presented, as it is presently written, not subject to possible hypothetical amendments, protects Newfoundland’s integrity. the integrity of its borders and as well ensures jurisdiction over its educational system as it stands?
Mr. Hearn: Well, I think the point being raised in the debate is that theoretically they are not protected. Whether or not practically speaking that is a likely result, any infringement of those, is a different question and there are two viewpoints to that and we are not saying that tomorrow our border will be changed or tomorrow our denominational system will be changed, but we are recognizing that at constitutional times one has to consider what things are to be written in stone and what things are not and these are things that have always been clear to the province and at a time of constitutional change or renewal, maybe that is the time to ensure that they are written in stone.
Mr. Tobin: Well, what you are telling me is that you do not envisage and you do not believe as a citizen of the province, as a member of the legal profession, that there is some great danger, let us say, almost upon us of the border being radically changed and of our school system being radically changed because I simply want to make the point that as I read the Constitution, and I would like your comments, Newfoundland . . .
Mr. Halley: If I may just answer that question, Mr. Tobin, it is of great concern to Newfoundlanders when we see a federal paper that was presented during the referendum in Quebec which showed no border between Labrador and Quebec. It is also of great concern when we see a magazine like MacLean’s which shows a map of Canada with no border between Quebec and Labrador, and it is of great concern to us when we see an energy paper presented to us by Mr. Marc Lalonde recently which showed no border between Labrador and Quebec.
We are concerned. We are not talking about hypotheticals in this particular case.
Mr. Tobin: I simply want to make clear to you that I am concerned as well about maps that do not show the distinction between Labrador and Quebec, and I am concerned as well if a drivers licence comes out of Quebec City to Labrador City showing that Labrador City is part of the Province of Quebec. I am also concerned but I want to make the distinction between those kinds of examples which naturally arouse the ire of any Newfoundlander, arouse the anger of any Newfoundlander, and what is contained in this constitutional package, I want to separate the emotionalism of the kind of examples you have talked about from what is in fact contained in this document.
I too am concerned. I might tell you that I agree with your comments here with respect to the $600 million being lost to the Province of Newfoundland. I have no hesitation in telling you I think this is a straight, if not in the legal sense but in the moral sense, it is a straight rip-off. It is wrong. No question.
You talk about mobility rights. They should also include the free movement of goods and services, and I agree as well. I think our constitution in this area does not go far enough, but I also want to point out to you that the federal government, the Prime Minister is on record as saying that the Government of Canada will ensure that any new development of Labrador Hydro will move, if necessary, across the Province of Quebec if such an agreement cannot be reached between the Province of Newfoundland and the Government of Canada. Now, to my knowledge no hard, comprehensive, solid proposal to this day has yet been presented.
I can tell you that as a Newfoundlander the day that kind of proposal is presented, and if the Government of Quebec is being unreasonable, we have a comprehensive proposal and if the Government of Canada fails to act, I will no longer support the Government of Canada and I can say that now publicly because I am confident that the Government of Canada will act. I simply want to separate the emotion.
Mr. Hearn: If I could comment on that point with respect to the mobility of goods and the hydro development in Labrador, one of our points strongly, Mr. Tobin, and we welcome your viewpoints on that and your support, but we feel those things ought to be outside of the political process. There are procedures with respect to interprovincial movement of oil and gas, one does not have to go to the Prime Minister or to the Cabinet necessarily to request a corridor for an oil and gas pipeline. Right now, at present, the National Energy Board Act does not contain procedures where there can be expropriation for an international power corridor or for an interprovincial power corridor. We would prefer that those things were outside the political sphere but were embodied with the technical boards that ought to have the authority to deal with that and naturally, of course, the public well-being and the economically feasible tests would still have to be met.
Mr. Tobin: One other matter I want to raise with you before I pass the time along, because time is running out. This question of the resource amendment, the proposed resource amendment being changed or modified to include hydro, which is a renewable resource and which would have dramatic impact in Newfoundland, certainly in future and could possibly have a dramatic impact, possibly have impact on the existing contract between Newfoundland and Hydro Quebec with respect to Churchill Falls power. Could you tell me how the Bar Association of Newfoundland views the announced intent of including the hydro in its resource amendment? Is it significant, is it relevant to the present development plans of the Province of Newfoundland?
Mr. Hearn: We are very pleased that it is included in there. Indeed, as we mention in our brief, we made representations to all political parties in Ottawa that the accretion of power with respect to indirect taxation, concurrent jurisdiction, interprovincial trade and management and control ought to, such transfer of authority ought to include hydro power as well as nonrenewable resources and forestry. We feel that that could have great significance to the Province of Newfoundland.
With respect to the question of how it would impinge on present arrangements, contracts or anything of that sort, the exact extent of its impact would have to be studied but we feel it could indeed be significant.
Mr. Tobin: Just one final question, Mr. Chairman. I am also interested to know, there has been a lot of discussion as you indicated earlier with respect to the borders and the denominational, educational system and in particular regarding the educational system in Newfoundland, more so than the borders, I believe, both private and public discussion. There has been some suggestion from some quarters in Newfoundland that ideally we are going to go to the ultimate in enshrining protections in stone. It should be or could be necessary, or would be desirable for the constitutional act 1980 to also not only protect the denominational, educational system from any possibility of change as a result of federal initiatives, but to protect the denominational, educational system also from any possible changes as a result of provincial legislature initiatives. Could you comment on that?
Mr. Halley: Mr. Tobin. I do not think you need worry about that because any provincial government in Newfoundland whoever dares tamper with the denominational, educational system of our province will not be the provincial government for very long. So I suggest that any fears that anybody has in that direction are a little outlandish.
Mr. Tobin: No. What I am asking you for is a legal opinion. I am not asking you about what would be the result of doing such, what I am saying to you if one can argue that technically, hypothetically it is possible somehow, some way through a series of steps to change this constitution after it comes back, to have the result he that Newfoundland’s border, or in particular, Newfoundland’s educational system can be changed against the Province of Newfoundland’s will, then it could also on the other hand be technically argued, hypothetically be argued that the denominational, educational system, not that it would ever be, but could technically be changed by the Legislature of Newfoundland itself?
Mr. Hearn: Well, I am not sure that is a correct interpretation, Mr. Tobin. If you look at Section 17 of the terms of union which were embodied in the British North America Act 1949, it says that the Legislature will not have authority to make laws prejudicially affecting any right or privilege with respect to denominational schools, et cetera.
“Will not have authority”, I suppose if there were a consideration from the groups with denominational schools and they were looking at a constitutional proposal, they would ask that, let us ensure that it cannot ever be changed by anybody so that the amending formula could theoretically now change and so the province could effect that, but presently under Term 17 I think that they probably do not have constitutional competence.
Mr. Tobin: Yes, but the point I am making is that under Term 17 they do not have the authority now, that is the Legislature of Newfoundland, to change the denominational educational system in Newfoundland, they are committed to provide funds for it under the terms of union, but the argument that somehow the Government of Canada or the rest of Canada could somehow change the system is based on the premise that the Terms of Union would become null and void. So if the terms of union became null and void to allow the Government of Canada or the rest of the country to change our educational system, then presumably they would be null and .void insofar as the Province of Newfoundland is now committed to provide funds for the denominational, educational system; is that not correct?
Mr. Hearn: Oh, yes. I think that if term 17 were altered and if the denominational school system were to be entrenched, it would have to be entrenched, obviously, for protection from both levels of government.
Mr. Tobin: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Tobin. We have a wee bit of a dilemma. It is close to 6 o’clock and we are going to reconvene at 7:30 p.m. Senator Tremblay would like to ask one short question, Senator Roblin would like to have his turn and Senator Goldenberg would like
to say a word as well as Senator Petten and Mr. Crombie. So I am in your hands.
Mr. McGrath: Well, Mr. Chairman, we still have 6 or 7 minutes to go. This is a very important brief. it is an important witness, it represents the views of a province and I submit that we should continue. Senator Tremblay should be allowed his question. I did not take all my time in order to allow other members to participate and I would certainly want to hear from Senator Roblin who is a former Premier of a province.
The Joint Chairman (Senator Hays): Senator Roblin.
Senator Roblin: Mr. Chairman, I would like to express my admiration for this brief. I feel a little bit of an intruder in discussing it with you because up until now it has been a matter between Newfoundlanders and I must say you are well able to demonstrate the interest of your province.
I will not try to deal with any problems of a more domestic nature but I am attracted by the broad way in which you have analyzed the questions that are before this Committee and I think I would like to refer to your statement on page 7 of your brief where you talk about the present balance between the powers of the federal and provincial governments being dramatically and permanently altered as a result of the tiebreaking procedure that we have in this bill.
Now, you are talking about the very idea of federalism as we have known it so far with two levels of government each to a degree sovereign in their own area and you are suggesting that this new bill we have before us is going to dramatically and permanently alter that. In what way will it be altered and do you think it is good or bad?
Mr. Hearn: Well, the possibilities for change in that the referendum procedure, as one illustration, can be initiated by one level of government alone is certainly a dramatic alteration from the present constitutional amendment procedure, and the fact that that is under the control and purview of just one level of the partnership.
With respect to the question of whether or not those things are good or bad, I think that there has not been sufficient dialogue and there is not enough time to make a proper and detailed assessment of this package and indeed to reach a proper consensus as to what level of change we have.
I think that a value judgement is perhaps premature on what changes would actually mean except to say if they are unilaterally within the purview of one level of government and they do result in a substantial alteration, then that is not the type of change we would like to see hastily made. However, I certainly do not think that right now I could express an opinion as to what directions the country will take in the future with these changes.
Senator Roblin: Yes. I see your difficulty there. I would direct your attention to Section 38(3)(a) which deals with the questions of referendums and it tells us that we may be asked to decide between two different ways of running a referendum:
the Victoria formula, which you referred to and is in this bill, and perhaps something the provinces might set up as an alternative.
However, I direct your attention to the fact that the federal government could submit the Victoria formula or any alternative, Now, that really opens the door for upsetting the balance of powers between the federal and provincial governments and when you add on to that Section 39 which says that unknown formula can be adopted by a straight majority across the country, what does that do for minority rights?
Mr. Hearn: Well, we think there is a possibility of great effect on them and Certainly in the time period for the provinces proposing a different amending formula. When one looks at the experience in other countries with respect to constitutional change, normally constitutional change is a lengthy and time consuming process and the very constraints of a couple of short years to have to propose something, I think that all those things do represent potential intrusions on the rights of provinces as well as the rights of minority groups.
Senator Roblin: Well, I am impressed by your concern with respect to the speed with which we are proceeding and I must say I share it and I do hope there will be plenty of room for more dialogue with the people on the matter but 6 o’clock is the witching hour here and I just have time for one more question, I guess, and that is you seem to be concerned about, and I am reading your brief here,
the transparent attempt by the federal government to unilaterally change the constitution of Canada.
What do you not like about unilateral action on the part of the government changing the constitution of Canada?
Mr. Hearn: Well, we think that it has not been the Canadian historical perspective to deal with the constitution unilaterally, that conventions had grown up whereby you did consult and have a dialogue with the provinces. We are not suggesting that on matters of change you require unanimity, we have never suggested that I do not think that our group or indeed our province is even suggesting that. The fact that the federal government can now initiate proposals of this sort with potential intrusion into the provincial areas of jurisdiction and that they can request that the British Parliament pass it so that the convention is used for the very convenient method of the proposals required by the federal government, including the amending formula, regardless of the objection of the provinces or a significant number of the provinces, that is definitely a type of unilateral action that is contrary to our historical experience. Interestingly enough it does not even satisfy its own acid test in that it does not meet the criteria for amendment proposed in the constitution itself.
Senator Roblin: I think that is a very significant remark and I will close my questioning on that point, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you, Senator Roblin. Senator Tremblay, you had a question.
Senator Tremblay: Yes, I have a very short question and it relates to your proposal that if the federal government is not going to accede to the request relating to the off-shore jurisdiction you propose that Section 16(1) of the constitution act
1980 be deleted. There are a few things there which relate in fact to the patriation itself. I mean by that those sections of the Statute of Westminster which are abrogated there. I am not sure if that is not going too far in the sense that it might be understood patriation would not take place for Newfoundland.
Mr. Hearn: If that is the song, maybe that might be a good result in itself but our point was meant to be, we do not oppose patriation, we are very much in favour of it but we have some questions about the process and whether or not consensus has been reached. Our concern with respect to that particular point was that references in the Statute of Westminster to Newfoundland as a dominion ought to be repealed. There is some concern and again we do not wish to overstate it and say that we are vaguely saying that this does interfere with our case, but it has been suggested in some quarters that it might have some impact on arguments being made by the province if the reference to it as a dominion were repealed. It is only to that limited extent, sir, so that the other questions with respect to patriation are not meant to be addressed.
Senator Tremblay: Thank you.
The Joint Chairman (Senator Hays): Thank you very much. Senator Goldenberg.
Senator Goldenberg: I will be very brief. I must at the outset, Mr. Chairman, express my conflict of interest. I notice counsel is laughing there. I was constitutional advisor to Newfoundland for over a period of ten years, including the conferences of 1960 and 1965.
I just have two questions. In your brief, and as Senator Tremblay pointed out, you expressed some concern with Item 16 in Schedule I about the exclusion of the expression “and Newfoundland” because you feel that may have an effect on, for example. the claim for off-shore resource control. is it because you because you think that this would have a retroactive effect that it would mean that Newfoundland was not a dominion at the time of the Terms of Union.
Mr. Hearn: We are not suggesting that that will be the interpretation of the court. If one were presenting a court brief, you certainly would put that in as one of your arguments, that it had retroactive effect. We are not saying that the court will decide that in fact it does have retroactive effect.
Senator Goldenberg: I would advise you that it does not make any difference. It would not be retroactive.
Mr. Hearn: We certainly hope so. We would be much more confident to have it out.
Senator Goldenberg: Coming to Section 43, which gives you concern. the amendment of the constitution affecting one or more. but not all the provinces, you object to it being permissive, the word “may”. Would you prefer it if the word “only” were added after “may”?
Mr. Hearn: Well, yes, and we would also require amendments to Section 47 as well.
Senator Goldenberg: What amendments would you suggest to Section 47?
Mr. Halley: To delete amendments to Section 43 and this would ensure that where it affects one or a few provinces but
not all, amendments to that concerning the jurisdiction of that province would not be made without its consent.
That was our concern and our protection for our boundary and denominational system.
Senator Goldenberg: You know that the boundaries of each province are protected by the BNA Act of 1871.
Mr. Halley: It would have to be a two step process if you were to attempt to amend.
Senator Goldenberg: You see there has been mention of theoretical possibilities, technical possibilities. As lawyers we know that there is a difference between that and what could be done technically. Assuming the government proceeds under this resolution technically the UK Parliament could repeal the constitution act of 1980. It could repeal the Statute of Westminster and convert Canada into a crown colony. That is technically possible, but we would not expect that and therefore I would say that the things that are technical possibilities are very unlikely to occur and I certainly would not think there is any danger to the boundary of Newfoundland.
Mr. Halley: All we ask for is if that is the case why not now put it in stone and give us that protection. Do not leave it hanging on a possibility. We agree it is very remote and I am sure that it would never happen but we are concerned that there is a gap that should be filled and now is the time to do it.
Senator Goldenberg: Would you want to add that the map in Maclean’s shall not be considered a constitutional document? Those are all my questions. Thank you very much.
The Joint Chairman (Senator Hays): If there are no further questions—well. if I am going to take some more I have—no questions?
Some hon. Members: Point of order.
Mr. Crombie: I had a question actually before your point of order. It is on the list.
The Joint Chairman (Senator Hays): Mr. Crombie did have a question and we did have him down here.
Mr. Crombie: One question actually. Thank you Mr. Chairman and gentlemen. At the top of page 7, dealing with the matter raised by Senator Roblin on the question of the use of the referendum mechanism breaking the balance you indicated you felt that that was a traumatic and permanent alteration in the powers between the federal and provincial governments. Just above that you indicated that it was not only an alteration in the balance of the federal system but also that it would turn us from an essentially parliamentary and I quote:
an essentially parliamentary system of government into a republican populace system of government
and I wondered why he chose the word “republican.”
It is the first time any matter has been raised with respect to the monarchy because I gather that Mr. Trudeau has said
hands off the monarchy, do whatever else you like for now. That is the first time I have seen the word republican in any of the briefs so I just wondered why you used it, unless you have been talking to Mr. Lapierre of course.
Mr. Hearn: We were addressing there the question that our system has been packed between two levels of governments and that the referendum process being addressed to the people was akin to the republican populace modes and we were using it in that phrase. We were not suggesting that it was per se at the present time an attack on the monarchy.
Mr. Crombie: So that is a kind of creeping road to republicanism, is it? Thank you very much. Mr. Chairman, thank you.
The Joint Chairman (Senator Hays): Senator Austin.
Senator Austin: I would suggest Mr. Chairman that adjournment is nearly in order but I would not want to prevent one or two questions if there are still members of the Committee wishing to put them but Mr. Epp and Mr. Nystrom I believe are agreeable to our meeting again at 7.30 p.m., meeting the Polish group at that time; and then continuing until 10.30 p.m. this evening at which time we will have a steering committee meeting about scheduling tomorrow. I would like very much to have the Committee determine whether the Newfoundland section of the Canadian Bar Association who have put in a most interesting brief can be thanked by the Committee for their efforts.
The Joint Chairman (Senator Hays): Yes, Senator Epp— Mr. Epp.
Mr. Epp: I will stay with the people.
The Joint Chairman (Senator Hays): You do not have a choice.
Mr. Epp: Mr. Chairman. Mr. Chairman, after your intervention with the National Action Committee, I think you did better right now.
Mr. Chairman, in regards to the comments made by Senator Austin, he did not place the caveats that I gave to him. On behalf of my colleagues, we are willing to sit at 7.30 p.m. today to meet the Canadian Polish Congress and at 8.30 p.m. to meet the National Advisory Group. But I did say at that time, and I have to repeat it, I am not pleased with the results of and the actions again of the Committee today. I do not believe the Committee should be asking witnesses to come to Ottawa and then that the Committee and the witnesses have to scramble and change times in order that they can be heard. I do not want to see our witnesses or members of the Committee placed in that invidious position again and on that basis, I accept the extended hours today; but I do not accept that as a precedent for further meetings. Senator Austin said he wanted to have extended hours. I do not know Mr. Chairman to what period of the day you would extend the hours, especially if you have now to schedule subcommittee meetings at 10.30 at night, after we have had three sessions of this Committee. I just do not think it is fair.
That being the case Mr. Chairman, I want that Subcommittee once and for all to come up with a recommendation acceptable to all members of this Committee that when we call
witnesses there is ample time for them to make their points and for us to ask questions. and it is on those caveats that I accept the arrangements for tonight.
The Joint Chairman (Senator Hays): Mr. Mackasey?
Mr. Mackasey: I have got to repeat that if it was a scramble today this party is not to blame. It has been the two hours that we wasted this morning determining something that had been determined yesterday, and, by the way, repeated again in the House of Commons after the Question Period where incidentally the House Leader reiterated our arguments that we made this morning, namely that the government was flexible on the December 9 date. that they had stated so and obviously they were aware that this was the mood of all members of this Committee including the Liberals. The House Leader went on further to suggest he had been attempting to discuss a future date with the House Leader of the Opposition over the last two weeks. He expressed some zinger, maybe feigned or real, politicians being politicians, that these motions were brought up this morning despite the fact that there was a clear exchange in the House yesterday that indicated that the matter was then being discussed at the House Leaders’ level, that the government was indeed flexible as to the date December 9 and quite prepared to extend it, conditional of course on a hope that we can complete all three stages at a reasonable time.
I wanted to say too. Mr. Chairman on another point, not unrelated to Mr. Epp’s point, that there will be inevitable delays from time to time it only because of the voting procedure I share the view of Mr. McGrath that we should not do without our dinner or supper because we would be that much angrier at 8 o’clock but we could use for instance tomorrow afternoon if we have to.
The Joint Chairman (Senator Hays): I would like at this time to announce that at 7:30 p.m. we are going to meet the Canadian Polish Congress and at 8:30 the Advisory Council of the Status of Women until 10:30 p.m. This meeting is now adjourned.
The Joint Chairman (Senator Hays): We should like to call the meeting to order.
This evening we have with us witnesses from the Canadian Polish Congress. I am going to attempt to pronounce these words: Mr. Jan Kaszuba. Mr. Jan Federorowicz and Mr. Malichi. Gentlemen. we are pleased to have you here and the procedure is that you make a brief opening statement and then members of the Committee would like to question you.
Mr. Jan Kaszuba (President. Canadian Polish Congress): Mr. Chairman, ladies and gentlemen, I would like to introduce myself. I am Jam Kaszuba of the Canadian Polish Congress; on my left is Mr. Marek Malicki, who is the Vice-President of the Canadian Polish Congress, he practices law in Missis-
sauga; on my right hand is Mr. Jan Fedorowicz. He is a Professor of History at the University of Western Ontario.
Maybe in a few words I would like to tell about the Canadian Polish Congress. Canadian Polish Congress is an umbrella organization spread from Halifax to Vancouver representing over 200 organizations comprising social, veteran, cultural. professional, youths, scouts and many other groups of different interests, but united in their desire to preserve their Polish heritage and proud to be a vibrant and colourful part of the Canadian mosaic.
In the last few weeks we Canadians have devoted quite a bit of time and energy discussing the problem of national unity. We all agree that the Canadian national unity is of utmost importance to our own well being and without it, as a nation, we would be without a future. We all over agree that unity must be based on equality for all peoples of Canada.
I would like to quote the Right Honourable Prime Minister of Canada, Pierre Elliott Trudeau who, on October 8, 1971 announced the implementation of policy of multiculturalism within the bilingual framework. He stated that although there are two official languages. there is no official culture, nor does any ethnic group take precedence over any other, no citizen or group of citizens is other than Canadian and all should be treated fairly. Then he added that the government will support and encourage the various cultures and ethnic groups that give structure and vitality to our society, they will be encouraged to share their cultural expression and values with other Canadians and so contribute to the richer life for all of us.
He made one condition that these ethnic groups must have, as he expressed it, a collective will to exist.
Ladies and gentlemen, I can assure you the Poles in Canada, the PoIish-Canadian cultural community has the will to exist.
This pronounced multicultural policy has been supported by all the major political parties of Canada both in provinces and federally. We must say and I believe that the multicultures is a way of life in Canada. I mentioned all these facts because we are coming to the heart of today’s problem. the Canadian constitution. In the Polish Canadian Congress we take this position: we are, as a group, for the patriation of the constitution, we are for the entrenchment of the Bill of Rights in the constitution, of course, with suitable changes in the proposed text, but we are also in agreement that we must have an entrenchment of the multiculturalism in the Canadian constitution. We consider this a must. Thank you.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Epp?
Did you have somebody else who wanted to make it contribution?
Mr. Kaszuba: Each one wanted to make a contribution.
The Joint Chairman (Senator Hays): Oh, I see, go ahead.
Mr. Jan Federorowicz (Canadian Polish Congress): That was in the nature of an introductory remark. My comments, I
will apologize for them, they are perhaps a little bit disorganized, that is because I have only had a day to prepare them. I was informed of this opportunity, for which I am grateful and for which we are all grateful, but I was only informed of this yesterday, so, I did not have it lot of time to prepare them.
Nonetheless, I would like to thank you for allowing us to appear. I can only hope that this is going to be a genuine dialogue and that some of our concerns can be communicated to you and perhaps will have an effect on what will be done with the fundamental law of our country.
Now, we have initially submitted a brief, we submitted this in the summer, which contains more a statement of principles rather than any specific set of proposals. In the brief which we submitted, there were two basic principles that we insisted on: one is the principle of Canadian unity, the other the equality of all Canadians.
If you will allow me, I do not intend to read the whole brief. I only want to extract one or two fragments from it just to give you the general tenor of it.
In the brief we say that the constitution should clearly state in its preamble that Canada is a country which has been created out of ethnic culture and linguistic diversity. It should affirm the right of every group. not merely people of French or British origin, to preserve and cultivate the various languages and cultures within the broader Canadian context. We go on to suggest that this is not a process of constitutional reform that we want to undergo very often. It is painful at the moment, it has been going on for 50 years, let us get it done and let us get it done right.
On the other hand, if continuing immigration, particularly from non-French or non-English speaking parts of the world, decisively changes the ethnic composition of this country, as indeed it has been doing since the last World War, then a document which singles out the so-called “founding races” for special mention or special privilege, because of historical accident will become either irrelevant or, what is worse, perhaps racist.
I am not even sure what a founding race means. The first captain of the first English ship to come to Canadian shores was Giovanni Caboto. Does that mean that the Italians are a founding race in Canada; I am not sure.
The specific recommendations of the Task Force on Canadian Unity suggested that the preamble to the Constitution recognize the historical partnership between English and French speaking Canadians and the distinctiveness of Quebec. Inasmuch as this would ignore the various other partnerships which bind together this country. singling out only one in particular, that could be taken a an insult to Canada’s smaller ethnic groups, whose partnership in this country is of legally equivalent validity. Furthermore why should the obvious distinctiveness of Quebec alone merit recognition in the constitution, why not the Gaelic distinctiveness of Nova Scotia or the Ukrainian distinctiveness of Manitoba. Either all distinct regions down to Toronto’s “little Italy” are singled out or none are. So I think it is important that that principle is maintained.
The same recommendation of the task force suggests that the constitution recognize the special place of the so-called native peoples of Canada. Well. I am a native people of Canada. I was born 30 miles down the road from Ottawa in Kemptville and I am just as much a native as anyone else. A constitution cannot compromise itself by the imprecise use of language. Let us be clear what a native person is. If you mean Amerindians, that is another matter.
In any case, it hardly conforms to any normal principle of justice to make status in a country dependent on the historical order in which ethnic groups immigrated into a country. So, I think that is another point we want to make, which we want to stress.
Finally, the task force originally recommended that in the preamble the richness of the contribution of Canada’s other cultural groups be recognized. Well, we find this formula patronizing and offensive. We do not make a contribution to this country, we are a part of this country. We were born in this country, we are citizens of this country, we do not make a contribution to a process controlled by someone else. So, we wonder if the matter should be specified in this way.
The point of these remarks, and I realize that since this original brief was submitted other matters have come before the agenda. We now have the resolutions before us that we are discussing. But the point that we are trying to make is that we reject any notice of special status. That is the first point. All Canadians are equal, all Canadians should have the same status in law.
Our problem with the proposed resolutions is that certain phrases seem on the face of it to be discriminatory.
Perhaps in the discussion later on I can be corrected on this. But Section 23 of the resolutions states that citizens of Canada whose first language learned and still understood is that of the English of French linguistic minority population of a province, etcetera, etcetera, will have the right to choose the language of their chi1dren’s instruction.
Well, as it appears now, as a citizen of Canada, I would have at least one less right than those whose mother tongue is either English of French. My mother tongue happens to be Polish. I did not speak any other language except Polish until I was about four or five years old, though I was born here, as I say.
So, according to this proposal, I would not have the right to choose the language of education of my children. whereas, other people might.
Well, I refuse to be made a second class citizen and I think most people of the so-called ethnic communities probably feel the same way.
Perhaps the point can be made more clearly if we compare what would happen to a Dutch immigrant and a Belgian immigrant to this country. A Belgian, having been born in a country where the official language is French, would have the right to choose; a Dutch immigrant would not
Canada, furthermore. has signed the Universal Declaration of Human Rights and committed itself among other things to Article 26(3). I will read it to you. It says that
Parents have a prior right to choose the kind of education that shall be given to their children.
There are parts of this resolution now before Parliament which would deny that right, or at least. if not deny it, would regulate it. Are these rights then to be curtailed, are we going back on the agreement that we signed in the Declaration of Human Rights?
I imagine that the problems that we are confronting are the problems of drafting the correct wording of all these resolutions, but I draw attention to them because, after all, the constitution to some extent is engraved in stone and we are trying to get it right and get it right for all time.
Further than the specifics of any of the proposals, we are concerned about a broader issue and that is the question of multiculturalism. Canada is, after all, a multicultural country. The bilingual and bicultural commission in the sixties and Book 4 affirmed this in 1971, the Prime Minister tabled it as the official policy of the government in the House of Commons. All parties accepted it, in 1972 a Secretary of State for Multiculturalism was appointed, a Canadian consultative council on multiculturalism was appointed in 1973. We have had grants, we have conferences, we have had all kinds of activities and there is no mention of any of this in the resolutions before the Parliament.
One wonders if all of this activity has been anything more than just window dressing. I do not know I would hope that it is not, I would hope that it is a genuine commitment to the policy of multiculturalism and yet from a reading of the resolutions as they are presented, multiculturalism and, indeed, the word culture is not mentioned.
The question of language is a key. We know about the problems of language, we have had these problems in Canada a long, long time. I suspect that the problems of language are even more complicated than we think.
I refer again to our brief. The question of third languages also needs to be reviewed. The Government of Canada says that it accepts the multicultural nature of this country and yet it ignores the issue of language, without which culture per se is meaningless. If the question of language is so vital to a group as large as the Quebecois, how much more crucial must it be to the smaller and widely dispersed ethnic communities who stand to lose any trace of their cultural heritage once their language disappears. Existing multicultural policies have fostered a stereo typical view of ethnic culture as consisting of costumes, dances and exotic foods but by ignoring language, they have cut these cultures off from their roots, rendering them into irrelevant, archaic museum pieces and not living organisms.
If the government sincerely believes in multiculturalism, then it must maximize opportunities for third language education within the normal educational curriculum. Anything short
of this is simply dishonest. While we all accept the the practical rationale for official bilingualism, and nobody is challenging that, nobody is quarrelling with that, or Certainly we are not, we reject utterly the notion that Canada is a bilingual country in the everyday practices of a substantial portion of its population.
Well, the point is that we are simply afraid that all this sound and fury is, to some extent, meant to pacify us, to keep us quiet, but does not represent and kind of commitment and when these resolutions came out, that fear was, shall we say. exacerbated. One hopes that ‘the government does not see everything in this country in terms of the English-French dichotomy because there are almost one-third of the population of this country that are in some sense not included in that dichotomy.
I sympathize personally very deeply with the cultural struggle of the Quebecois. I sympathize with it because I experience it myself in my own little cultural struggle against the mass culture of the lowest common denominator. That is why all of Canada’s ethnic groups, including I suspect the Scots, Welsh, Irish and English, should be allies in this struggle.
We should not allow one group to affirm its own culture at the expense of anothers. It is simply unjust and undemocratic to do so. Regardless of when our ancestors came here or how many or how few of us there are, we all have equal rights, or should have, to our cultural expression.
As I said, the resolutions which I have before me do not mention multiculturalism. They do not mention the word. They drily and mechanically plod through the issue of English and French language rights, guaranteeing those, but for a substantial part of this country, neither English or French are in fact their mother tongues. The language rights of those peoples are utterly ignored. There is in fact no guarantee of the right of these groups to provide education for their children in their own language and culture.
Would, for example, third language schools be legal under these present provisions? I am not sure that they would. All we know is that according to Section 22 of those provisions, legal or customary rights hitherto acquired are affirmed. Well, what are the legal and customary rights as regard third languages. Is it very clear, is there a clear statement on that? We would have to sift through, I imagine, quite a number of law books to find out.
Furthermore, if we look at Section 22 closely, it affirms the existing rights but it does not envisage any extension of those rights in the future should that in fact prove to be necessary or desirable. Well, I am not happy with that formulation and I suspect that not just in the Polish community but in other ethnic so-called communities in this country there is a similar amount of unhappiness. The constitution of a country should not be an ad hoc arrangement of temporary compromises or political expedients. It has to stand the test of time and it has to be an expression not only of a particular historical situation,
which can change. In the 18th century Canada was a French country and in the 19th Century it was British North America and in the 20th century it is something else entirely. Do we know what it is going to be in the 21st Century or a 1000 years from now? No, constitution has to be an expression of principle and in a democratic state the law must apply to all people equally. That is a principle.
Well, one principle that the Canadian government has accepted because it is part of the International Bill of Human Rights of the United Nations is that in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language. Now, that is in the United Nations’ Bill of Rights. We have signed that document, we accepted that document yet it does not appear in our constitutional proposals. That I think is a very serious oversight.
At best, we have a general principle enunciated in Section 15(1) which says that everyone has the right to equality before the law. for the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. That is all it says. It does not say anything about cultural rights, it does not say anything about guarantees if I want to educate my children in a third language.
So if the constitution is to be equal, then, for all Canadians, not just English or French Canadians, I would like the new constitution to recognize that I, too, am a Canadian, that my language, though unofficial, is a Canadian language; that my culture is a Canadian culture; that I have as much right to pursue and develop my cultural and linguistic interests as any other Canadian, and that my government, which I support with my taxes, will help me in this endeavour.
Either Canada is a multicultural country, and this fact is recognized not only in the constitution of this country but in the practice of the government, or we should stop beating around the bush and admit that there is only room for two chartered ethnic groups in this country and that it is official policy, by carrot and stick, to induce all other groups to assimilate into one of these two. If the latter case turns out to be the real intention of all of this, then that is a policy which I totally reject and I suspect it is a policy which you would have trouble convincing a third of this nation to accept.
The Joint Chairman (Senator Hays): Mr. Malichi.
Mr. Marek Malichi (Canadian Polish Congress): I am just going to make a few additional comments to the statements of my predecessors and I may make a brief comment as a preamble and that is in the present arrangement under the British North America Act the fact that none of the basic freedoms are specified I believe would make it a fair assumption that these freedoms exist unless they are abrogated by law or by Parliament. By specifically naming these particular
freedoms there is always the fear that those that are not named are not specifically included or can be excluded. This makes the point that my predecessor mentioned that in Section 15(1) there is no reference to cultural preservation. Now. this is not just a theoretical problem, it is a very practical problem.
When the War Measures Act was promulgated in 1917 there was a period of time during which persons of central European origin were prohibited from the use of their languages except in the home and in their churches. It was not permitted to use the language on the streets. That can still occur theoretically under the present constitution unless there is the preservation of cultural rights in the constitution. Preservation of cultural rights of course presupposes the right to use a language other than English and French. As it was stated before, we wholeheartedly support the concept of two official languages; the country could not exist unless that were the case. I think the resolution specifies in paragraphs 14 and in paragraphs 17 to 20 that these official languages are to be used in Parliament, in the legislatures and in the courts and that is as it should be.
Nevertheless, Section 16(2) makes a reference which really leaves the constitution subject to change at the whim of the legislature and the paragraph simply says:
(2) Nothing in this Charter limits the authority of Parliament or a legislature to extend the status or use of English and French or either of those languages.
Well, either we know now where those languages will be official or we do not know. We are really leaving the door open for an amendment to the constitution defacto by any provincial legislature or the Government of Canada. As an example, if we have to use English or French in the courts, say, of the province of Ontario, what is to prevent the Province of Ontario from legislating that all contracts shall be in the English or French language. Now, contracts could mean written contract. It could mean oral contracts. It could mean buying milk at the local Becker’s Store. A contract that is not in the English or French language would be invalid, would not be enforceable in court. is that not some manner of preventing persons from the use of their language, from infringing on their cultural right? This is one example of many that can be presented.
If there is an intention in the constitution to indicate that the English or French languages are to be used, then let us specify in which cases they are to be used and not leave it open-ended for the legislatures to decide.
The constitution should be a terse short document. The constitution should not be subject to interpretation, to variation. Section 16(2) begs variation, begs the provinces to determine for themselves what is appropriate in the use of the English or French languages.
Under the British North America Act education has been within the competence of the provinces. With the proposition that Section 23 be included in the constitution there is to a certain extent infringment by the federal government in the area of education, albeit not great but it is a foot in the door. That, therefore, leaves room for discrimination in the same manner as my friend indicated, because the constitution is a document that theoretically is not subject to change except at very considerable effort and at very infrequent intervals. The provision of the English or French linguistic minorities having their language rights entrenched makes it difficult, if not impossible, for provincial legislatures to provide for language instruction in third languages because it may be contrary to the principles on which we are governed, the constitution. Therefore, that is why we are concerned with that particular area, because it is no longer subject to change in a provincial legislature, it is part of the constitution, whereas in the Toronto area we are now in numerous programs where third languages are taught in the public and separate school systems. This may be unconstitutional in the future. It may be unconstitutional, not subject to variation. That is why we are concerned. This is the Federal Government speaking, it is enshrined in the constitution that affects us all.
I might make a brief reference to something quite apart from language rights and this is the reference to the rights of citizens before the law. It is said that the law is like a knife, it never hurts the person who wields it. if we look at certain paragraphs, in particular Section 8, 9 and 11 (b), there is reference to the words “in accordance with procedures established by law”. As an example, anyone charged with an offence has the right not to be denied reasonable bail except on grounds and in accordance with procedures established by law. Why are the words “in accordance with procedures established by law” used? That law is subject to change at any time by the Federal Government. Theoretically, the constitution can be changed at any time. A criminal code can be amended. By the same token paragraph 8, which states “everyone has the right not to be subjected to search or seizure except on grounds and in accordance with procedures established by law”. Is it sufficient to put a period after the word “grounds”? and simply say “everyone has the right not to be subject to arbitrary search and seizure”. Procedures in the law vary, they vary from year to year and they vary from one government to another government.
The constitution is a document that defines once and for all the rights of citizens and the inclusion of those words makes the constitution subject to change and subject to interpretation.
There is one further point that I perhaps may make in connection with the question of language. Section 23 would appear to permit the government to support a French minority language group in another province other than Quebec or an English minority language group in the province of Quebec if there is a sufficient amount of persons there, whether or not that group is willing to contribute financially to the preserva-
tion of the language in that province or in that area, in other words, the government is prepared, on the basis of that section of the resolution, to artificially support a language in an area where the people themselves are not willing to contribute to the preservation of the language simply because of the number of people there. There are no guarantees that the government is prepared to support the preservation of, for instance, Ukrainian schools in Manitoba, Polish schools in Toronto, if there is a sufficient language group, even if that group is prepared to contribute financially, that is an inequity.
Why am I, of Polish origin but not born in Poland, I was born in England and came here when I was three, why am I and my children not permitted to get government support to study the Polish language, and my children speak three languages, or the Spanish language or any other language, whereas the group of francophones in Manitoba, who may not be prepared to pay for French language schools, have an inherent right to ask the government for support based on those sections.
Those are my comments at the present time subject to any questions that may arise.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Epp?
Mr. Epp: Thank you, Mr. Chairman. I want to thank the members of the Canadian Polish Congress for their brief this evening, for appearing here. I have had personal experience with their association on a local level and have been very much impressed with the manner in which they have preserved their culture by their own initiative. People such as Father in Manitoba.
What I would like to ask, first of all, the gentleman here this evening, a comment was made by one of you that you had one day to prepare this brief. When were you asked to appear before this Committee?
Mr. Kaszuba: Yesterday, eleven o’clock in the morning.
Mr. Epp: Yesterday, at 11:00 a.m.?
Mr. Kaszuba: Exactly.
Mr. Malichi: If I may make a further addition, our brief was presented in August of 1980. . .
Mr. Epp: Excuse me for interrupting, but prior to the proposed resolution that is before this Committee?
Mr. Malichi: That is correct. Much material, much dialogue, many, many things have passed since our brief has been presented. Mr. Kaszuba, our President, of course wanted to have both the person who was integrally responsible for drafting the brief, which is Professor Federorowicz, and myself there. We view this as a tremendous opportunity to make our presence felt. I was required, nevertheless, to have another solicitor handle the matter in the Supreme Court this afternoon on two hours’ notice. Professor Federorowicz was required to cancel classes at the University of Western Ontario. Although we appreciate this opportunity, we are
concerned for those citizens that do not have the opportunity, perhaps because of the very, very stringent time constraints in being notified.
Mr. Epp: Thank you, gentlemen. I would like to get into the matter of what I thought was the central point in your presentation. namely the inclusion, either in the preamble or in some suitable section of the constitution, enshrining the concept of multiculturalism. You are correct when you say that it is official government policy of every government of Canada that has had those responsibilities, every political party on the national level has endorsed the concept of multiculturalism. and I use the word “concept” for good reason.
I would like to get your reaction in this way: when the changes to the Immigration Bill were made an amendment was moved by the Opposition to include multiculturalism in the Immigration Act, namely that the purpose of it and there is now a Statement of Purpose in that act, one of the purposes of that act is to preserve the bilcultural character of the nation, that was endorsed by all parties. We also wanted to include the words “multicultural nature of the country”, in view of the fact of immigration changing the numerical makeup of the country or the potential changes it can make to the numerical makeup.
Could I have your view in terms of inclusion of the multicultural reality in Canada in legislation, and I have given you one example, namely the Immigration Act.
Professor Federorowicz: I am not sure that I understood your question entirely because you said first “bicultural” and then you said “multicultural”.
Mr. Epp: The preamble, the statement of purpose in the Immigration Act now includes “bicultural” namely that it is the purpose of the Immigration Department to foster the bicultural character of Canada.
Professor Federorowicz: And presumably that means that anyone who is not English or French cannot come into the country.
Mr. Epp: No, that is not what I am saying. What I am saying is that it was not accepted as official policy in legislation that the word “multicultural” should also be included in a statute of Canada.
Professor Federorowicz: Well, I believe that it should be included in a statute of Canada, as I suggested the government has on numerous occasions claimed to be introducing this kind of policy, multicultural policy, a recognition of the ethnic diversity and I do not see why it should not come into the statutes in a practical way. Why should our immigration policy want to foster one kind of an ethnic distribution in this country as opposed to another? That sounds to me a little bit racist. Why not just say: look, there are always going to be a few problems, there will be refugees from one country or another, this will always upset things so there are moments when we cannot predict what is going to happen.
So I am very much against the notion of bicultural as opposed to multicultural, I think this is a multicultural country and either we accept that fact and we behave accordingly in our legislation and in our government practice or we stop talking about it. Let us just be honest, put our cards on the table and say: look, the purpose of 70 per cent of the population is to assimilate the other 30 per cent. Let us know where we stand on that. So my feeling is: one or the other.
Mr. Epp: Could I ask you in terms of amendments to the proposed resolution, have you had any opportunity where that amendment, if the committee should be willing to accept the proposal that you make tonight, as to where you would see it included to entrench the reality of multiculturalism?
Mr. Malichi: Well, perhaps I could make one or two brief comments on that. I think Section 15(1), which deals with the right to equality before the law and equal protection of the law without discrimination, that really deals, I suppose. more in the sense of discrimination rather than preservation of cultural rights, but it appears to be the only paragraph here that remotely comes to the idea. Ethnic origin simply means that: Origin; it does not mean the present; it means where we came from but not what we are now. There is no reference to the preservation of language, there is no question of the use of other languages other than say, in the courts or in the Parliament.
We were quite disconcerted to note in the resolution that there is no preamble. Until quite recently we had been under the impression some form of preamble, albeit very short and terse, would be there and it has been suggested that the preamble may contain a statement as to the multicultural character of Canada. The preamble, of course, is part of the statute. It aids in interpreting the statute subsequently and an acknowledgement of the multicultural concept of Canada would then of course leave the other sections to be interpreted in that light.
In the absence of a preamble, and in View of the fact that Section 51 is more a non discrimination clause rather than a preservation of culture clause, it would either be in the form of preamble or inclusion of a subsection to Section 15, I would imagine, dealing with the preservation of cultural rights, or linguistic rights, other than, say, the use in the courts or in Parliament.
Mr. Epp: In view of your origins in central Europe and what has happened to private property in Poland, the Canadian Bill of Rights of 1960, the so-called Diefenbaker Bill of Rights, included property rights. We do not find any property rights in this proposed resolution What is your view on inclusion of those rights in a charter?
Professor Federorowicz: Well, I think the omission of property rights is probably an oversight of the drafters and I would hope that that would be rectified. There are other oversights of the drafters that we have noticed in our hurried way.
For example, this business of equal protection of the law without discrimination makes no statement about something
like hate propaganda or ethnic slurs. That is another aspect of things which is not mentioned here, which is not in any way dealt with. It is possible in the law as it stands right now for people to produce advertising which portrays an ethnic group in an unfavourable light and there is no way of dealing with that. I think people have a right not only to property but to their good name, to their reputation. There is nothing that would protect that.
I noted that the Canadian Jewish Congress a couple of days ago suggested that hate propaganda also be excluded, that it is inconsistent with the democratic process and a specific recommendation to that effect be included, and we fully support that. We would extend it to say any kind of racial slurs or notions like that.
So it is not just property. A person’s self-esteem, a person’s self image can be just as important as property, but I quite agree that property probably should be in here.
Mr. Malichi: Can I make a very brief addition to that? Again before the resolution has been presented it is assumed that property rights exist simply because they have never been abrogated by legislation. Again, if we are going to name what rights we have, again, that is just a general principle there that other things are included. It is an exclusive definition of our rights, an exclusion of property rights appears to imply those rights do not exist.
Perhaps carrying the second point also a step further, paragraph 25 of the resolution that any law that is inconsistent with the provisions of the charter is inoperative does not take into consideration-that most of us are not as affected by laws as we are by administrative tribunals, regulations and by decisions of persons other than judges and that paragraph 25 should apply also to decisions of administrative tribunals and to regulations under the various statutes.
Mr. Federorowicz: My position is that inasmuch as the Government of Canada signed treaties with, shall we say, for the sake of convenience at the moment, the native people, though I think we need a better expression than that, then the Government of Canada is in duty bound to adhere to those treaties. We can make a statement to that effect.
But a statement to the effect that the treaties are recognized does not single out those people for any special status, and that is the distinction I am drawing: yes, by all means, we recognize the treaties we have signed; no, the native peoples are not a special status group in this country, There are no special status groups in this country.
But I am absolutely in favour of recognizing the treaties that we have signed with them, and honouring those treaties to the last letter absolutely.
Mr. Nystrom: I would like to switch to Section 23.
You said earlier, I think, that some of the wording of Section 23, the linguistic rights, if I remember correctly, you said it mainly espoused other languages illegal or unconstitutional. With your background as a lawyer, I would like you to eleborate on what you mean by that, and if indeed that is the case, what kind of changes would you perhaps make to Section 23 where they would not indeed be unconstitutional. Why would it in your opinion be unconstitutional?
Mr. Malichi: Quite apart from the fact of unconstitutionality. the inclusion of that would disincline provincial legislatures to go the route of either funding or encouraging schools to be taught in other languages, simply because the constitution, the basis of the federation, says that English and French shall be taught in schools with the caveat that English and French may be taught in provinces where they are not the primary languages if there is a substantial minority group. That, in itself. is already a reason for provincial legislatures to say: “The constitution of Canada, which is the document to which we all adhere, prevents us from either funding or supporting your schools”.
Perhaps the example that my friend gave before might suffice. If I were to move to Quebec and wished to have my children learn the English language in Quebec, they would not be permitted to learn English, just by the fact that I was brought up in an English-speaking province, simply because I am not of the English or French linguistic minority; my original mother tongue was not English; because I spoke Polish before I spoke English as well. Therefore, a person of English origin, who resided in Ontario and moved to Quebec can have his children taught in English. I was brought up in Ontario, I learned English. studied in English and then I take my children to Quebec and must then have them learn French and not English. That situation would put me in a different category from that of any person of English origin: I would not be as good as that person; I am a citizen, but my citizenship would have strings attached. That is why I think the inherent equality which people are to derive from this constitution would not exist if this section were passed that way.
Of course, the courts can interpret paragraphs, but it would be stretching it a long way for a court possibly to interpret it favourably.
This is not like the United States where the courts can strike down statutes because of the constitution. in this particular case, I think, the language is so obvious as to what is intended that the courts could never make that decision.
Mr. Nystrom: Certainly, you are right so far as establishing two types of citizens is concerned. You take the situation in Quebec where a person immigrating and becoming a citizen from an an anglophone country, be it the United States. Austrialia or whatever, the way it reads, they would have freedom of choice, but a person immigrating from Quebec or a francophone country, or Italy, or Sweden, or Poland would not have that same right. The contrary is true of the other parts of
the country, a person emigrating from a francophone country, if numbers warrant, would have freedom of choice.
I also wanted to ask the professor another question. He used a word tonight which is very tough and a very sweeping word.
He used the word “racist” a few times. You said that something was a little bit “racist” when you were referring to some of the legislation of the country. Were you thinking of some sections in this resolution when you were using that word, and is there anything in that resolution which can be constructed as being racist?
Mr. Federorowicz: Not specifically in the resolution, but in the spirit of only two founding races or two founding cultures, which somehow pervades this resolution, we might get that notion.
I would not accuse anybody in this government or those who are drafting this legislation of setting out deliberately of make racial distinctions or categories.
But the feeling is, somehow. that there are only two founding races and that there only two languages and that there are only two cultures, because none other is mentioned. I am very worried about that. it strikes me that a constitution that limits itself in that way could, in fact, become racist with the passage of time, if for example the ethnic composition of this country changed.
How do we know what is going to be happening here 500 years or 1000 years from now? I wonder if this constitution is going to last that long. I hope it does, but I dread to think of having to go through all of this again.
Some hon. Members: In 500 years!
An hon. Member: You would be older than Stanley Knowles!
Mr. Federorowicz: It worries me that we have that kind of supposition built into this resolution and that the other groups or other races or ethnic communities are not recognized or even mentioned.
So my answer would be no, not explicitly or directly, but potentially it could be a problem.
Mr. Nystrom: I would like to say thank you very much to the Jewish Congress for coming here tonight.
Some hon. Members: Jewish?
Mr. Nystrom: Polish. The Polish Congress. I think that proves a point, Mr. Chairman, that we have been hearing so many witnesses in such a short period of time and rushing so much, that we all need an extension of the deadline from December 9.
As regards Section 23, you said there was an infringement on provincial rights, namely education. I think you said it was a slight infringement but a foot in the door.
The so-called Alberta formula for secondary language education, I think those of us who come from Western Canada are familiar with the Alberta formula, namely the second lan-
guage of education can be any language that the people so choose. That is also the thrust of purport of your argument today. Are you saying by suggesting that it be included in the constitution, that we are facing now a unilateral action with this proposed resolution, and that the same infringement does not exist in your proposal?
Mr. Malichi: Perhaps we can eliminate altogether any reference to education rights for linquistic minorities altogether and therefore assume that such rights exist inherently, rather than including the rights of other ethnic groups to teach in their language, simply delete any reference to Section 23(1) and (2). I think it would naturally flow therefore that other languages could be taught in the provinces, and the provinces, within their jurisdiction would have the competetence to decide whether there will be schools teaching a third language, or whether the French minority will have language instruction; it is obvious that French and English will be the official languages, and so it would be reasonable for provinces to encourage French language education and to encourage English language education, because there is that right in government and Parliament and, of course, courts to use those languages,
So that would flow, but there would not be that overt discrimination which arises by the inclusion of Section 23.
Mr. Epp: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Nystrom.
Mr. Nystrom: I think, Mr. Chairman, what I will do is let somebody else on the other side ask a question out of fairness and you can come back to me.
The Joint Chairman (Senator Hays): Senator Haidasz.
Senator Haidasz: Thank you, Mr. Chairman.
I, too, would like to express my appreciation for the brief that the delegation of the Canadian Polish Congress has just presented to us at such short notice. although they knew about the joint resolution to both Houses of Parliament when it was announced by the Prime Minister early in October.
However, I would like to follow on the questions of Mr. Epp, and I would like to ask Professor Fedorowicz whether Section 22 can be changed in any way to suit the Canadian Polish Congress because it reads now:
22. Nothing in Sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language.
I am sure Professor Fedorowicz knows one of the highlights of the multiculturalism policy is a heritage enrichment program which does allow federal funds to be expended for the teaching of nonofficial languages.
So this is a right or privilege that has been acquired and enjoyed by many ethnocultural organizations that wish to take advantage of that provision in the multiculturalism program.
Mr. Federorowicz: One obvious way of changing it would he to insert the words “and culture” after “language” in that provision, so we know that we are talking about something more than just linguistic rights.
I am a little hesitant about the present formulation of it. I cannot after having only 24 hours to prepare. give you a nailed-down type of alternative wording of this.
But I am a little hesitant about “any legal or customary right or privilege”. I am aware of the various multiculturalism programs which exist, and I hope they would continue to exist and even be expanded; but I am not at all sure that any legal or customary right or privilege is an adequate expression of those programs that do exist.
I would like to have that nailed down a little more explicitly. In any case, not just a language, but culture be mentioned here.
Senator Haidasz: If I may, Mr. Chairman, ask Mr. Kaszuba, the President of the Canadian Polish Congress whether you would insist that a preamble be part of this constitution act, or whether the charter of rights amended in some way, would be sufficient to satisfy the Canadian Polish Congress that the federal government is, indeed. committed to multiculturalism; after all, successive ministers of state for multiculturalism have stated that policy is a permanent policy of the Government of Canada; and it has provided all the machinery by which such policy can be implemented.
Mr. Kaszuba: I am of the opinion that the preamble would be the proper place to insert it, because it describes the nature of a nation. what it consists of.
In addition to the two majority groups, the English and French speaking people, there is a third group which speaks a variety of different languages. The stressing of multiculturalism in the preamble would underline the character of the Canadian nation.
Mr. Malichi: Perhaps I can make some small addition to that. Although we acknowledge the existence of the English and French speaking groups, there should be no reference in the preamble to English or French speaking or other groups. It sets apart the other groups as a form of second class citizens. As a Canadian citizen, there is no distinction between someone who is English speaking, or of English origin or of French or other origin, It should simply state that Canada is a multicultural nation, or endorse the policy of multiculturalism or some such form, without distinguishing between the English speaking, French speaking or others.
Senator Haidasz: My final question. To make it clear what the position of the Canadian Polish Congress is on the special status of founding races, do you categorically reject a special status for some province? Do you categorically reject, also, the concept of founding races?
Mr. Federorowicz: Yes. Why specify any one province above any other. Why specify any particular race above any other. The order in which we have arrived in this country is a product of a lot of different things, historical accident more than anything else, and I am not sure that a constitution which deals with questions of justice should specify founding races or charter races, or charter linguistic groups or anything like that. I think we should all be treated equally as Canadians, regardless of whether our ancestors came here 80,000 years ago, or three or four years ago.
Senator Haidasz: In your presentation, Professor Fedorowicz, you mentioned that your mother tongue was Polish, and that something in this proposal of a constitution act makes you fell like a second class citizen. You were born in Canada and you have reached the status of a professor of history at one of our universities.
Do you really feel that you are a second class citizen?
Mr. Federorowicz: I do not feel it. But that is what potentially could happen if Section 23(1) were applied rigorously because I would not have the same choice in various parts of the country regarding my children’s education as other people would have, other Canadians. In that one instance my rights would be different from somebody e1se’s rights. I would reject it. I do not think that is just.
Senator Haidasz: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you. Mr. Nystrom.
Mr. Nystrom: I also want to thank the association for appearing here tonight and making some important points about the multicultural background of the country. As you can see from my name, some of my ancestral roots are from a different group, although half of my family do come originally from the British Isles. I am a bit of a mongrel type of fellow.
But I think it is very important to enshrine in our constitution some reference to our multiculturalism and it has been the position of our party that that should be the case.
I fully understand some of the hesitation that is being felt, particularly in the Prairies by some of the people who came here from eastern Europe. I speak, historically, of my province, which is probably the only province in the country where the Ku Klux Klan had a major impact back in the 1920s. They were very well organized in those days, and their targets were basically people of the Catholic religion and the newly arrived immigrants from eastern European countries, and I speak particularly of the Ukrainian people of my province and also others. I fully understand some of the feelings of people from countries of this sort and the feeling that we should have our rights firmly enshrined in the constitution and protected by law of the constitution.
A number of things which were said tonight, however. bother me a little in terms of whether or not we are doing as Parliamentarians the right thing in this resolution, because you are raising some points which others have not raised, though I
think that is very good, and I would like to ask you a few questions for the purposes of clarification.
You refer to Section 24 and talked about native rights. I think it was Professor Fedorowicz who said that he considers himself one of the native people of this country. The wording, here, perhaps should be changed to Indian peoples, Inuit peoples, perhaps the Métis people of this country.
I would like to ask you whether or not you are in favour of enshrining rights for the original peoples of this country which are, what you might call the prefounding people, or if you do not want to use that type of language, the Indian people, or the Inuit people or the native people?
Mr. Malichi: May I make a brief answer to that? First if we took out the last two lines of Section 24 and end at the word “Canada”, would the rights of those native peoples not be preserved?
Mr. Nystrom: The native people argue that their rights are not preserved because they signed treaties with the Crown, many, many years ago.
Mr. Malichi: When you refer to the native people, are you not distinguishing them as a special group? Can it not be implied by virtue of being mentioned that they have rights inherently greater than other groups, that they are Canadian citizens with greater qualities than others have?
Mr. Nystrom: I do not think it is a question of greater, but the question of the relationship and status which may be different. But I am asking you for your position.
I would like to thank very much the Polish Congress for being here tonight and any other suggestions that they have will now make it a better resolution and a better constitution for all the peoples of Canada and it will be most appreciated.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Kaszuba, you and your colleagues for representing the Canadian Polish Congress here this evening. As there are no further speakers, we wish to thank you for coming.
Mr. Kaszuba: Thank you very much.
The Joint Chairman (Senator Hays): Yes, Mr. Crombie?
Mr. Crombie: A point of order. Actually, the delegation may wish to stay, it is a very short point of order. I had understood the last deputation only found out that they were to appear before the Committee at 11:00 yesterday morning and I just wondered how arrangements are made. Did they receive a phone call?
The Joint Chairman (Senator Hays): Well, I would hope, Mr. Crombie, at our steering committee later on that we will be able to learn that.
Mr. Crombie: No, I may not wait for that, it will be midnight. I would like to ask, if you would not mind, how the delegation felt they received the information. Can I ask the delegation how you received the information as to when and how you should appear today?
Mr. Kaszuba: I think I said it before. Yesterday at 11:00 a.m., I received a call from Ottawa.
Mr. Crombie: And who was it from Ottawa?
Mr. Kaszuba: I have not got the name of the gentlemann but I think it was Mr. Dobell, I think. He contacted us and asked us if we able to muster a delegation for the next day at 3:30. So, of course. I grabbed my telephone and started calling. trying to find out who could come. I was very lucky to be able to secure Mr. Federowicz and Mr. Malichi to come over.
Mr. Crombie: Well, thank you very much. I think you are to be congratulated and I think it is appalling. Mr. Chairman, if that is the way in which this Committee is being run. It is not your fault, sir, I would be the first to say that, but is is no way for which people to come before the Committee representing the Polish Community in this country, if they get a call and ask if they can do it within 24 hours is just nonsense.
The Joint Chairman (Senator Hays): Mr. Mackasey?
Mr. Mackasey: Mr. Chairman, I am glad that David Crombie raised the point because it has been bothering me, frankly, and it is not a partisan thing, nor was it advanced that way. And I am talking now as a concerned member of this Committee, not necessarily a liberal member and I am very concerned about witnesses, especially all witnesses are distinguished witnesses, making it clear that they only have 24 hours to appear. I just would like to ask a few questions in order to clarify this so that we are right.
How was the contact first made with us in the first place. Did you first ask to appear here and when?
Mr. Kaszuba: Well, we learned about the submission of the briefs. We supplied the same brief which was sent to Ottawa in August. Since this was a second request, this was I think mailed by special delivery to the office of the Chairman of the Committee and then we had hoped we would be called. Of course, it would be hoped that we would be called but not on such short notice.
Mr. Crombie: Can I ask a question?
Mr. Mackasey: Let me finish, David and I will go right back to you.
Mr. Crombie: Just a question to understand the information. I had understood the brief that was presented that you sent in August clearly was not in reference to the resolution.
Mr. Kaszuba: Of course not.
Mr. Crombie: So. that is what I am talking about.
Mr. Mackasey: The resolution was only deposited October 2, he would have to have real clairvoyance to have the resolution in hand.
Mr. Crombie: No, I think it has to be clear because they raised it in that fashion.
Mr. Mackasey: Well, if it is not clear, I am glad you made it clear.
Mr. Crombie: Thank you.
Mr. Mackasey: What is important to me is you were called November 13?
Mr. Kaszuba: November 19.
Mr. Mackasey: You were called November 19, but you applied or requested to come in here on November 13.
Mr. Kaszuba: No, we did not. You see, we did mail our brief prior to that.
Mr. Mackasey: Yes.
Mr. Kaszuba: I think it is difficult to say because as you probably know, the request for submitting briefs was only published in the newspapers on November 15.
Mr. Mackasey: Yes.
Mr. Kaszuba: And the time extended was to November 25, I do consider in such a very important matter we should never allow people just two weeks time to prepare themselves or to prepare their briefs. If we did not have a brief in August, certainly we would not be able to supply it to this Committee.
Mr. Mackasey: The point I want to get at is, were you told you had to be here, or were you invited and asked if you were prepared to come at this particular date, rather than, say, a date two weeks from now?
Mr. Kaszuba: Sir, we did consider our presence and our ability to present our views so much more important than the short notice.
Mr. Mackasey: And we are glad you came to this conclusion, to have no illusions about that. But you did feel when you accepted the invitation on such short notice that you could do justice to the occasion because of the brief that you had prepared in August.
Mr. Kaszuba: I would say, of course, the longer period of preparation would help us, but on the other hand, our views are very definite, Maybe we did not have enough time to study the latest proposal, to make very minute details out of it. You see, of course, we were short in this aspect.
Mr. Mackasey: In other words, you were given an opportunity to appear this soon, you weighed the fact that you had done some study in August, the issue is essentially the same and you felt quite prepared and I might say that what you said tonight did not reflect any lack of preparation. In fact, I think we all learned a lesson. Thank you very much.
Mr. Kaszuba: Thank you very much.
Mr. Nystrom: I just wanted to say out of courtesy to our witnesses, I do not think we should be involving them in some of our procedural wrangling, Mr. Chairman, we should be taking these to the Subcommittee.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Kaszuba: Thank you.
Mr. Crombie: A point of order. I just want to register the point that I think any group that has the opportunity to appear, and there are a few of them, would welcome the opportunity to appear rather than having the ability not to appear. So, I accept that point. But it seems to me, to get a call and to be asked to appear within 24 hours is not adequate. It is not fair to them and it is not fair to this Committee and it is not fair to the matter that is before us.
Mr. Mackasey: But the point I want to get at and to at least satisfy me on the same point of order, I know you want to move on, Mr. Chairman, but in the final analysis the decision was made by the group to appear. They have assessed whether or not they have enough time. I feel a little better. It does not mean to say I approve of the total proceedings.
The Joint Chairman (Senator Hays): Thank you very much. I am going to turn the meeting over now to the Co-Chairman.
The Joint Chairman (Mr. Joyal): I would now ask the representatives of the Advisory Council on the Status of Women to come forward.
I would like to call now at the table of witnesses the advisory Council of the Status of Women and ask for their representatives if they would like to take part in our discussions to get a seat at the table of witnessess.
I am pleased, on behalf of the honourable members of this committee, to welcome Mrs. Doris Anderson and the other members of the executive committee who constitute the delegation from the Advisory Council on the Status of Women.
I must also thank them for having patiently waited to be called, even if it was agreed that they were to be heard earlier this week.
It is really my pleasure to welcome you tonight and I understand that you had circulated a brief or distributed a brief to the honourable members of this Committee that you have a summary of the recommendations that you want to put forward. I would like, first, to ask you to introduce the other ladies that are with you tonight. Mrs. Anderson?
Mrs. Doris Anderson (President, Canadian Advisory Council on the Status of Women): I am Doris Anderson, President of the Canadian Advisory Council on the Status of Women and to my right is Lucie Pepin our Vice-President and Mary Eberts, former Professor of law and now with the Toronto law form of Tory, Tory, Deslaurier & Binnington. Behind we have Nicole Duplé Professor of constitutional law at Laval University and Beverley Baines, Assistant Professor of law at Queens University who wrote our paper “Women, Human Rights and the Constitution”.
I would like Lucie Pépin to start.
Mrs. Lucie Pépin (Vice-President, Canadian Advisory Council on the Status of Women): We welcome this opportunity to place before you these submissions on the proposed resolution for a joint address to Her Majesty the Queen respecting the constitution of Canada. Patriation of the Canadian constitution is a significant landmark in the history of our nation. We hope that this expression of our concerns and interests will be of some help in your deliberations.
The Canadian Advisory Council on the Status of Women was created in 1973, pursuant to a recommendation made by
the Royal Commission on the Status of Women. It has four full-time members and 27 part-time members chosen from all parts of Canada. with a varied background of professional and volunteer concerns. Its mandate is to bring before the government and the public matters of interest and concern to women and to advise the minister on such matters relating to the status of women, as the minister may refer to the council or as the council may deem appropriate.
Mrs. Anderson: Thank you. I will make a short statement of what our concerns are and then Professor Eberts will do a summary of the main points in our brief.
We are here tonight to strongly support the idea of an entrenched charter of rights which guarantees equal rights for women. This support was expressed and endorsed at our Canadian Advisory Council meeting last week in the following statement: The Canadian Advisory Council of the Status of Women supports entrenchment in the constitution of a charter of rights and freedoms which guarantees women’s human right to equality. However, in some of the clauses, the Council has grave and serious reservations and that is why we welcome this chance to explain our position. What is at the heart of our presentation and what we believe to be the main focus of women’s concerns is with Clause 15, the non-discrimination rights section. There is good reason for the Advisory Council to place our emphasis here. Protection against discrimination is a goal that women have been seeking for a very long time.
Women in Canada know from bitter experience that the discrimination we encounter often originates and is perpetuated by the laws themselves. In other cases, women have not received justice because of the unfortunate interpretation of laws that we believed were there to defend our rights.
The wording in Clause 15 is almost exactly the same wording as in the Canadian Bill of Rights and this wording we have found through ten years of testing before the Supreme Court of Canada has not alleviated discrimination for women at all. Equality before the law has meant equality of treatment in the courts and in the administration of the law, not in the law itself.
We would like to see the wording changed in each of the two parts of present Clause 15 and, in addition, we wish to add a further clause. We believe that we need these changes because the guarantee of rights for women, as it now stands, is simply not strong enough.
the wording we have suggested we believe would establish as a positive principle that women are entitled to equality.
The equality that we envision would exist in the law, not merely in the administration of the law. Clarity in the drafting of Clause 15 is essential so that there can be no misinterpretation of the directive to the court. It must be clearly understood by the public, by the courts and the legislatures that Canadians intend to enshrine in the Constitution a genuine principle of equal rights.
I would like to add that it has been very gratifying to the Advisory Council to hear previous witnesses before this Committee espousing the principles that we are presenting to you now. We have been heartened that a support for a clear statement about women’s equality has been urged so forcefully by such diverse witnesses as Gordon Fairweather, the Canadian Human Rights Commission; Maxwell Cohen for the Canadian Jewish Congress and Walter Tarnopolsky for the Canadian Civil Liberties Association.
The Advisory Council had 13 papers prepared this summer to inform Canadian women about the constitution. These papers have been widely used by women’s groups to help them form their own positions and in preparation for conferences women have held on the constitution across the country and in the preparation of briefs to be heard before this Committee; in addition, to spread the information to as wide a range of women as quickly as possible and to tell them what was at stake for them at this moment in history. We had a fact sheet prepared on the question of entrenchment and how it affects women.
On a coupon attached to this fact sheet, we asked for an expression from women on the constitution. To date, we have had over 12,000 replies in support of our position and more come in every day and, in addition to that, we have had many letters endorsing our position from national women’s organizations.
I would now like to ask Mary Eberts to summarize the main points of our brief.
Ms. M. Eberts (Legal Counsel, Advisory Council on the Status of Women): Thank you very much, Mr.Chairman. I hope that my cold will get better rather than worse as I proceed through our brief and if will have a salutory effect on the charter as well as on my throat.
Our brief contains detailed comments on all of the sections which, in our view, he a direct bearing on the question of a real guarantee of equality for women. These sections are 15, 1, 3, 24, 26 and 29. In these formal remarks we will concentrate on outlining for you why we think that improvements to proposed Section 15 and a drastic cutting back in Section 1 are essential to achieving substantial guarantees for women.
Section 15(1) of the proposed charter is discussed in our brief starting in the English version at page 4 and at page 5 in the French version for those who wish to make a note of those for future reference.
Section 15(1) repeats the guarantee of equality before the law, which has proved so ineffectually a safeguard against legislated discrimination. Precedents have established that equality before the law in the present Canadian Bill of Rights means only equality the administration of the law before the ordinary court. This means in essence that all the Indian women, not just some of them who marry non-Indians are entitled to have the ordinary courts uphold their deprevation of Indian status.
We are told, however, that concern about perpetuation in Section 15 of past frailties will be alleviated by two new
features of the proposed charter. The first of these is entrenchment. it is suggested to us that Section 25 of the proposed charter will ensure that a court may declare inoperative any legislative provision which offends the guarantees of the charter. it is pointed out to us that the absence of such an explicit power in the present Canadian Bill of Rights may well have produced some judicial hesitation to give meaning and content to Section 1(b) the equality before the law guarantee.
It is also true that the charter will apply to provincial laws for the first time by reason of Section 29. We certainly welcome these aspects of entrenchment as being basic to the achievement of better guarantees of equality for women. but we by no means think that these sections alone will solve the present problems.
But, we are told, that Section 15 also contains new wording that did not appear in the Section 1(b) and that this new wording guaranteeing the equal protection of the law will achieve what Section 1(b) was never able to do.
This little word “equal” added to Section 15 was proposed to be included in Bill C-60, as well as in the present charter. At that time, Minister of Justice Otto Lang said that inclusion of the simple word “equal” would mean that there could be no discrimination unless it was reasonable discrimination. He suggested that this would be an adequate safeguard for women’s rights.
This language, by the way, has strong overtones of the reasonable basis test used in American jurisprudence surrounding the 14th amendment.
We do not think that simply including the word “equal” in the old formulation will do the job that the charter needs to do, even if the courts do see eye-to-eye with the former Justice Minister and interpret the Section 1n the way that he predicted.
The problem is that courts an others are only too prone to find that distinctions made on the basis of sex are reasonable distinctions. The argument goes something like this, and it is an argument that was made by a former Justice Minister, Mr. David Fulton when the Canadian Bill of Rights was considered by this House in 1960.
Men and women are different, they reason. The difference is apparent and the difference is natural and, therefore, it is natural to have male-female differences entrenched in the law.
However, we know that not all the differences between men and women are natural. Vast numbers of them are culturally imposed. There is, for example, nothing in the structure of a woman’s arm that necessitates that doors be opened by men for women rather than the other way around. This is a cultural pattern.
Others of these differences are in the eye of the beholder only, and the fact that there may be some biological differences between men and women should not make reasonable all distinctions imposed in the law or even most of them. We certainly need a stronger indication for the courts about what is and is not reasonable as a basis for distinctions in law. The
Chairman of the Canadian Human Rights Commission gave his view when he appeared before you that limitations will almost never be reasonably justifiable of demonstrably necessary on the grounds of race, sex or colour. Chief Justice Laskin suggested in Bedard and Lavell that sex, race and the other categories in the Bill of Rights at present should be regarded as prohibited grounds of distinction. Our Prime Minister has also said in 1971 that race and sex discrimination in particular are doubly unfair and it is our submission that these particular kinds of discrimination, which people cannot avoid no matter what they do should be subjected to stronger measures.
What route is open to us to make it clear to legislatures and to courts that a simple reasonableness test is inadequate to bring to bear against the stubborn evil of sex discrimination? Well, I suppose we can trust to late. We could hope that Canadian courts will employ not just the simple reasonableness test described by Justice Minister Lang, but also the idea that some basis for distinction are invidious and should be subject to strict scrutiny by the courts, upheld only when the government can show a compelling state interest for requiring the distinction. This latter test has been developed in American jurisprudence as a companion to the reasonableness test. Together they form a two tier approach with the tougher strict scrutiny tier being applied to types of distinctions regarded as the most serious.
We are not too hopeful that trusting to luck will bring about this result. To begin with, there is just no guarantee that Canadian courts will adopt the strict scrutiny approach if left to their own devices, Moreover experience in the United States has shown that simply adopting a strict scrutiny approach may not achieve the result either. American courts are in a complete muddle about whether sex should be subjected to strict scrutiny or not. Sometimes they say yes. sometimes they say no, let us just subject it to a middle category test.
There is in our view no need to adopt uncertainty when we are forming a new constitution for Canada. We have, thanks to the chance to contribute at the outset to the nature of our charter, a chance to get it right the first time around. We can include language, meant as a clear signal to the courts that whatever they may think about other bases of distinction, certain bases of distinction should never be regarded as reasonable.
Our proposal for a change in Section 15 can be found at page 13 of the English version of our brief, page 14 of the French and it is also included in the summary of recommendations. We propose that the Section read:
(1) every person shall have equal rights in law, including the right to equality before the law and to the equal protection and benefit of the law.
(2) Such equal rights may be abridged or denied only on the basis of a reasonable distinction. Sex, race, colour, national or ethnic origin or religion will never constitute a reasonable distinction except as provided in Subsection (3).
Our proposal does two things: it accepts the idea that some distinctions may possibly be reasonable or practical. That is the idea behind Subsection I and the first sentence of Subsection 2. This is, if you like, our first tier of analysis. Under this section, for example, a law denying drivers licences to married women might well be struck down even though there is no guarantee of equality before the law on the basis of marital status.
We also feel it necessary to tell the courts what basis of distinction just will not be reasonable and that is the second sentence in Subsection (2). The matters enumerated there correspond closely to those highlighted by Mr. Fairweather before you and by the Prime Minister.
We think that if we keep the list of “never reasonable categories” which are explicitly expressed rather short, the courts and the legislatures cannot help but get the idea that in these cases they should and can respond to a signal to regard them as most grave. We should point out, however, that our proposal does not prevent the provincial and federal legislatures from broadening the legislative protections given to those with particular handicaps, given on the basis of age or whatever. The legislators are not hampered by the proposal we have put forward if they desire to expand protection for human rights. What we propose is that everyone in the country will be guaranteed a basic and very secure minimum protection which can expand as judicial awareness of trends in Canadian society gets a chance to operate on cases that come before it.
A brief word about our proposal for Section 15(2), which is discussed starting on page 15 in the English version of our brief, and page 17 of the French version. Subsection 15(2) as proposed is designed to permit legislative programs for the benefit of disadvantaged groups. That is not in our view, even as it stands in its present version, designed to require such programs and that is a distinction that we feel important. It is designed to permit programs that would otherwise be struck down by the courts because they violate Subsection 1, and our comments on this section are predicated on our understanding that that is what the purpose of the Section is.
We think that the present draft, however, has some deficiencies. First of all, it extends protection to affirmative action programs, if you will, that need not be authorized by a legislature, We think that this protection is too sweeping. A private employer. for example, may dream up a sort of crazy affirmative action program in order to justify its discrimination against women or against Indian people or against people who belong to a particular racial minority and we do not feel that this kind of private initiative which is carried on without the benefit of the legislative framework should be rewarded by protection in the charter of rights. Affirmative action is rather a special and heavy-duty remedy against discrimination and we do not feel that it should be available on a random basis to anyone who cares to dream up a program.
We also feel that the Section 1s deficient because it does not tie itself in with the groups mentioned in the proposed Section 15(1). Anyone who proves that they are disadvantaged, so-called, could under the present proposal try to justify a
program which discriminates against Indian people, against women, against those who may well be really disadvantaged in our society. For example, a program brought forward for the benefit of those poor souls who did not attend Upper Canada college might be justified under Section 15(2) as it now stands, even though that program discriminated against Indian persons who are trying to live on $1500 a year.
We recommend that Section 15(2) be cued in to groups that are mentioned explicitly in Section 15(1), because after all Section 15(2) exists only to prevent Section 15(1) from cutting down a beneficial program and there is no need to have its scope go any wider. and indeed there may be harms brought about because its scope does go wider.
Our proposal for rewording Section 15(2) is found at page 17 of our English brief, page 19 of our brief in French and also in the summary. I think for the benefit of us all I will avoid reading that one and just leave it for discussion and go on to Section 1.
We are gravely concerned about Section 1 as have been many witnesses that have appeared before this Committee. We in our labours to secure improvements to Section 15 and some of the other parts of this charter have had the eery feeling that no matter how successful we might be to strengthen the guarantees in Section 15, the work of all of us would be fruitless if we did not secure some restriction in the sweeping ambit of Section 1, and it is for that reason that we raise it in the context of our discussion of guarantees for women.
The section states that the guarantees are subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. Our discussion of this Section begins on page 24 of our brief in English, page 27 of our brief in French. The exception is a flat contradiction of the whole idea behind a charter of rights. A limitation which is generally accepted in a society with a parliamentary system of government is essentially a limitation which has the acceptance of a majority. Protection of minorities against the actions of the majority is the very cornerstone of our civil liberties and it was enunciated as such by John Stewart Mill when he cautioned that we should guard against the tyranny of the majority.
To say that we will limit our liberties in ways that have the majority’s approval from time to time is to say that our charter of rights is hollow. A court may have to assess under Section 1 whether a particular limitation on our liberty that has been imposed by a legislature is permissible. Any piece of legislation limiting our liberty will have to have had majority approval of a legislature so you see the hopeless contradiction in which the courts will find themselves. Is the single judge, are five judges, are nine judges appointed and secure for life to say that their wisdom about what is generally acceptable in a parliamentary democracy is the more secure guide for our nation than the wisdom of an elected parliament and the majority thereof?
We can predict two results, and they are alternatives: one is that the courts will be so awed by the task in front of them of
telling a majority in a parliament and a free society that it is unparliamentary, unfree and undemocratic. that they will simply refuse to strike down any limitations on our rights and freedoms.
In the alternative, they will be very cautious but they will from time to time come out front this caution and strike down a particular limitation on our liberty and it is our view that they will do that when they, the judges, feel that a particular liberty is of particular value and significance. So in effect this clause is truely inviting the courts to second-guess the Parliament and the framers of this constitution about what is important and what are the fundamental liberties.
The only time that a court will risk calling a parliament unparliamentary is when the court values the particular liberty most highly and this charter of rights has not been fought for through the years by our politicians and by our public interest groups in order to carry on so wholesale a transfer of power to the courts. Some significant role for the courts is inevitable and, indeed, it is welcome because the courts have long been the protectors of individual values. However, we feel that Section 1 goes too far.
We surmise that Section 1, at least in part, was included to give Parliament the chance to limit our civil liberties when it is necessary in times of war. apprehended insurrection or other civil emergencies and we suggest that it is in keeping with the democratic traditions of the western world if the limitations that can be placed on our liberties are explicitly spelled out in the charter of rights and not left to something like Section 1.
We suggest that Section 1 be reduced to a simple preamble explaining what the charter of rights is intended to accomplish and that Section 29 include a limitation that will come into effect only in times of war or other times of public emergency and that this section ensure a number of aspects. In time of public emergency which threatens the life of the nation so that it is a serious emergency and the existence of which is officially proclaimed, Parliament may authorize that temporary restriction of certain rights and freedoms to the extent strictly required by the exigencies of the situation but in a manner that the other rights and freedoms set out in this charter will be preserved. We also stipulate that there are some freedoms and rights set out in the charter that need never be interfered with no matter how grave the emergency.
We recommend that the non-discrimination rights never be tampered with and that there never be any derogation from freedom of conscience and religion, the right to vote and hold office, because there are already protections allowing for the suspension of elections which are found in Section 4.
The right to life, liberty and security of the person except when denied by a law duly enacted; the right to being safe from cruel and unusual treatment and punishment; the right to a translator in judicial proceedings should in our view never be suspended because of war or apprehended insurrection, and all the language rights in Sections 16 to 23 need in our view never be suspended because of any kind of civil or martial disability.
We would recommend that Section 29(2) be substituted for the present Section 1.
I would just like to mention briefly the other Sections that we are concerned about. We are considerably dismayed about the three year moratorium on the implementation of Section 15. This will deny access to the courts for three years from patriation for all those who complain of denials of equality before the law, The fact that the provincial legislatures and the federal government may be labouring mightily in the interim to change the laws will not help those whose cases are not heard because of the three year moratorium. In many of these areas we are more than ready to proceed at the moment and there need not, in our view, by any further delay.
We are concerned that Section 24, which preserves the rights of native people may well embed in our constitutional law the lamentable decision in the Bedard and Lavell case that Indian women can be treated differently than Indian men. That is a present legal right affecting Indian people which affect Indian women in a sad and shameful way. We recommend that if Section 24 is to be retained it end with the clause:
“provided that such rights or freedoms pertain equally to native men and women.”
We are concerned that Section 26, which says that the charter will not affect laws relating to the admissibility of evidence, will allow a provincial legislature to say that the evidence of a woman or an Indian is not admissible in a court of law, either absolutely or without some special safeguards. We are concerned that it might allow a provincial legislature to say that testimony which is not sworn by a religious oath is not admissible in a court of law. If this Section, the merits of which have been questioned by other groups before you, is to be retained we strongly ask that it, too, be made subject to the safeguards in Section 15.
Similar problems arise with the restrictions that might, according to this charter, be placed on the right to vote, to hold public office and to participate in referendae. At the moment the charter simply says that these are not to be subject to unreasonable limitations and we think that we have a list of unreasonable limitations in Section 15 that should be applied to those clauses.
Lastly, we would suggest that this charter deals with rights which individual persons have over against government action. The nicely laundered neutral language “everyone” does not in our view sum up the real significance of a charter of rights for individual persons and for minorities. Moreover, the definition which has been given to the phrase “persons” has a special significance for women in this country because we had to fight for so long to have it established that we are persons and we do not wish those precedents to be tossed on the ash heap by the stroke of a legislature’s pen. So we would ask that the language of the charter be changed so that everywhere you see the phrase “everyone”. the phrase “every person” or “no person” to be used to emphasize the personal dignity involved in the rights which are conferred.
Thank you very much for your attention to my croaking voice.
The Joint Chairman (Mr. Joyal): Merci. Thank you very much, Mrs. Eberts, and we do appreciate the efforts that you have shown in enlightening us as to your suggestions. I understand that you will now be ready to accept questions from the honourable members around this table.
I would like to recognize first Miss Flora MacDonald. Madam MacDonald.
Miss MacDonald: Thank you, Mr. Chairman.
May I compliment the Advisory Council on the Status of Women for a very excellent and well thought out presentation to the Committee. We have had two women’s groups appear before us today. It has been interesting to hear the comments they have made, the criticisms they have made of the constitutional proposals that are before us. As you will know, this afternoon the National Action Committee started off with these words:
“Women could be worse off if the proposed charter of rights and freedoms is entrenched in Canada’s constitution.”
As many of the Committee members here will remember, Doris Anderson, the President of the Canadian Advisory Council on the Status of Women sent a press release across the country, it was widely reported, on October 8th of this year and it opened with this statement:
“Canadian women should know that their rights are not protected by the federal government’s proposed charter of rights.”
Now, those are two statements which have been made by two very substantial and highly regarded groups of women.
In other words, the charter that is before us has very, very basic weaknesses.
I have listened with a great deal of interest to the analysis that was given to Section 1, the overriding section of this charter, that is to say the basic guarantee of our rights and freedoms. In that clause the basic guarantee is supposed to be embedded. Yet, when I look at what you have had to say about Section 1, I find that you have probably voiced the strongest criticism to date of Section 1. You said:
Section 1 is considered deplorable. If it is allowed to continue in its present form, there is no point in having the rest of the charter. Our liberties and rights would be in great jeopardy while guaranteed by a charter containing Section 1 than ever they have been.
That is a statement that really indicts the greater part of the charter. You go on to analyse the repercussions resulting from the weaknesses of the present Article 1 of the charter of human rights. You point to the fact that liberties would be subject only to majority approval and would indeed be hollow and would show that the charter itself is hollow, and you go on to point out—again I think that is excellent—the conflict which could occur between the courts and the legislatures if this particular overriding article is allowed to stand as it is.
So my question to you is. in the light of the analysis and the criticism that you have levelled against this initial Article 1, if that is allowed to stand. are you prepared to see the charter entrenched?
I know you have said that you support the principle of an entrenchment of a charter, but if that is allowed to stand as it is, would you want to see this charter entrenched?
Mrs. Anderson: I think the answer would have to be yes with great sorrow, because this is a very unusual opportunity that this country has. Most countries do not get that chance to rewrite their constitution, unless they have a war or a revolution, and here we have a heaven-sent opportunity to entrench a charter of rights in our constitution.
I think the question you are asking me is like asking me whether I would prefer Russian Roulette to an execution, and I would really prefer Russian Roulette. So my answer is yes, I would prefer to go ahead with it as it stands. But, considering the incredible amount of effort that women in the United States have been making for 57 years now to try and get an entenched statement of equal rights in their constitution with enormous difficulty I would urge this body and the Parliament of Canada to change this document. I think it is a principle all women would support, but it has to be improved.
Miss Macdonald: Mr. Chairman, I would like to come back to Mrs. Anderson on that point, because I think this is very important. The Civil Liberties Association, when faced with the same dilemma, said, “thanks. but no thanks; we really cannot live with that kind of a clause”. In fact you said yourself if it were to continue in its. present form there was no point in having the rest of the charter.
You now have presented, in effect, two cases: one. that you have accepted it as a second-rate document, and you would be unhappy with it for the rest of your life; and two, in your brief you have stated that if it continues in its present form there is no point in having the rest of the charter because the rest of the charter would only exacerbate the difficulties that we now have.
I ask you this: are you really trying to have it both ways?
Mrs. Anderson: I do not think so. I think we have to try very hard to get it Changed; but I think the whole purpose of these hearings, surely, is to examine closely all the reservations that the various groups have when they come before you, and hopefully, to get them changed.
We have gone to considerable trouble to point out the reservations we have on Clause 1 and Clause 15, and I hope that this whole exercise is not an exercise in futility.
Ms. Eberts: I think our ultimate position is, as Mrs. Anderson has said, that with wome sorrow we would contemplate the chance of getting a charter of rights in a constitution that was patriated without one is much more difficult than securing an amendment to Section 1 following patriation, or even through successive argumentation, trying to get the courts to adopt an interpretation of Section 1 and a reconcilia-
tion of that section with the rest of the charter that we could live with.
When you say that the task is the choice between trying to live with the contradictions of Section I or getting a charter of rights that is patriated without one, then those who have struggled for human rights and women’s rights over the years would assess that it is more difficult to get a charter of rights entrenched following patriation than it would be to solve the problem of Section 1; that is not to say that there is not a grave problem with Section 1; but it pales in comparison with the uphill battle that there would be to get a charter entrenched following patriation without one.
Miss MacDonald: I raised those questions because I was so impressed with the dangers that you spelled out, as I say, more than any other group that have come before as to the difficulties with Section 1, and particularly I say that from the point of view of women, because I think that the dangers that you point to would magnify themselves over a time if that Section 1, as it now stands, were to get locked into an entrenched charter of rights.
I would like to go on to Section 15 and Section 1 which you have dealt with at some length. Again. along with many other groups of women, many of whom unfortunately will not be heard before this Committee, you point to the fact that what is here before us is almost literally the same wording that denied justice to Lavell and Bedard, in the cases that they took to the Supreme Court of Canada.
I wonder if you would want to elaborate on the explanation you have given so far as to how women placed in this category, women who have full Indian rights, living on reserves, full Indian status, what would happen to them, do you think, in future, so that they could get any kind of justice if this article, as it is proposed now, were to stand?
Mrs. Anderson: Well, the wording “equality before the law”, really does trouble us deeply; because, as I say in the opening statement and Mary Eberts has elaborated quite expertly on this the wording has been tested before the Supreme Court in ten different cases between 1970 and 1980, and it has never been interpreted except in the Drybones Case but to mean anything more than if you take a case of discrimination to the courts you will be treated equally in the courts. It does not mean that the discrimination will be overturned.
Of course, the Bedard and Lavell casein 1973, these native women took their case to court, that when they married a non-native they lost all rights, including the right to live on the reservation, whereas a man who married a non-native did not lose his rights; so that this is a clear case of discrimination and the Canadian Bill of Rights did not change anything.
So that we feel that the wording in Clause 15 must be changed, in such a way that it gives a clear directive to the court.
The problem has been the courts have not had that kind of clear direction. I think Professor Baines would like to speak to that.
Professor B. Baines (Advisory Council on Status of Women): I am not sure I can add anything very significant to what Mrs. Anderson has just said.
But I would draw your attention to the changes we propose to Section 24 that, again, Mrs. Eberts has pointed out to you, namely that we suggest that it would be necessary to add a clause to Section 24 to ensure that we overcome the difficulties posed by the difficulties by the existence of the Lavell and Bedard decisions, now in the context of the words of Section 24.
Miss MacDonald: I know that my time is limited and all of these questions require amplication, and I know I will be running out of time and the Chairman will quite quickly stop me.
But a couple of matters: I noticed that you have suggested changing the heading in Section 15 from that of “Non-discrimination Rights” to “Equal Rights”. I think that is an excellent suggestion.
But in the wording that you used in the new clauses that you suggest for Section 15(1), you do use the word “distinction” rather than “discrimination”.
I have some hesitation about that. I think it is wise to call a spade a spade. It is still discrimination, no matter how you dress it up. I would want to see in certain aspects of the Bill the word “discrimination” left, because that is what it is.
I know that there are certain categories, which we have talked about, race and sex which are immutable characteristics which you would place in a different category from other characteristics; but I still would not want to see the word “discrimination” removed entirely.
Mrs. Anderson: I think the reasoning behind that was to give a more positive aspect to this very important document which is going to be with us, hopefully, throughout history.
Professor Baines: If I could make a brief comment to that. Our courts, unfortunately, in the way they have interpreted words, have actually interpreted “discrimination” as a situation which applies only to adversity. We feel the word “distinction” is tougher, because it can also apply to a so-called beneficial distinction or beneficial discrimination which might otherwise not be caught by the word “discrimination” in the way in which the courts are presently interpreting the word “discrimination”. So, we actually feel, however strange it may appear, that “distinction” is a tougher word and I draw your attention to the French version of Section 15 and point out to you that the word there is “distinction” rather than “discrimination”.
The Joint Chairman (Mr. Joyal): I take notice of your interest, and I will try to squeeze in everybody so that we might have a chance to come back to you. Thank you.
Miss Jewett, please.
Miss Jewett: Thank you, Mr. Chairman. I too am enormously impressed. actually wordless, if you can believe it, by the excellence of the presentation, and indeed. by many of the earlier papers that Mrs. Anderson referred to that were prepared this summer on women and the constitution by Mary Eberts and by Professor Baines and others and I cannot help feeling, after this presentation, and when we have had time to read even further, the papers that have been done, I cannot help but feel that there is going to be a very positive response from all sides and from all members of this Committee. In fact, I think it is going to be difficult for us to improve on the wording that has been proposed in many of the suggestions that have been made to us. So that I approach my questioning from such a positive glowing height that it is going to be difficult for me to say anything nasty or pin you down on anything difficult. It has occurred to me, however, Mr. Chairman, given the brilliance of the arguments that have been presented both in the earlier papers and in the one that we have before us tonight, and if I may just wander a moment.
I recall the first course I took in Canadian Constitutional Law from a very distinguished constitutional lawyer, actually, Professor Alex Corry. I remember when we studied the Person’s Case, we spent the whole time, and we spent a lot of time on it, you know weeks, literally, in that class discussing it from the point of view of how the Supreme Court interpreted the BNA Act as if it was an ordinary statute and how it applied to the ordinary rules of statutory interpretation. Never once did it occur to him, nor, I am ashamed to say, to any of us, to look at the substance of what was going on in the Supreme Court, that they were denying them their personhood.
In those days, literally no one teaching law even thought of looking at the question of, what is the substance of this all about, the fact that you were denying women personhood. The Judicial Committee of the Privy Council, I never had thought up to that moment was very enlightened but on this issue, it certainly was.
In any event, we have come a long way since then and as I said earlier today, one of the reasons we have come such a long way is because we have brilliance of this kind teaching in our schools of law nowadays. I am sure they will educate the gentlemen that are also teaching in the schools so that never again will we be subjected to the kind of interpretation I was back when I first took constitutional law.
But I would like to ask Mrs. Anderson before I make some specific points about the amendments, in the light of this excellent work that has been done, whether in fact, if I may, and I do not want this to be in any way embarrassing, but I am curious to know whether in fact you were consulted either by the Minister of Justice or indeed, by the Minister through whom you respond to Parliament, the Minister responsible for the Status of Women, about your views on the constitutional proposals and particularly on the Charter.
The Joint Chairman (Mr. Joyal): Mrs. Anderson.
Mrs. Anderson: I will ask Lucie Pepin to answer that.
The Joint Chairman (Mr. Joyal): Mrs. Pepin.
Mrs. Pépin: Unfortunately, we were not consulted.
Also, no one asked us to prepare a brief.
In fact, it is through personal initiative that we started to work on developing certain briefs in the hope that we would be asked by your committee to be a witness and to make our proposals.
Miss Jewett: Thank you, Mr. Chairman. Well, I guess we still have a problem in this country. However, I will not elaborate. You all know what the problem is. I wonder now if I could just turn momentarily to some of the main points in the order in which you present them. On Section 1, I think we all agree, and I am sure there is a lot of agreement everywhere around this room that it has got to be changed and I thought myself that your suggestion of having it just one sentence, the Canadian Charter of Rights and Freedoms guarantees to every person the rights and freedoms set out in it, and then move on to Section 29, new 2. The limitation part was very good.
I wonder what you would think of adding one clause to that section and the clause would be, after the Canadian Charter guarantees to every person the rights and freedoms set out in it and the equal rights of women and men to the enjoyment of these rights and freedoms, so that you have it right out in front at the beginning.
Ms. Anderson: Well, my reply to that is very positive.
Miss Jewett: Is there any legal problem with that, Mrs. Eberts?
The Joint Chairman (Mr. Joyal): Mrs. Eberts?
Ms. Eberts: Well, I do not think there is a legal problem. I think that from the discussions that we have had among our group concerning possible changes to the Charter, our main difficulty with the language such as you have proposed would be that if that were the only language guaranteeing women’s rights to equality in the Charter, we would find it not strong enough, but if that were part of the general hortatory introduction, then we can see it only as a beneficial addition, as long as it did not have to carry the full freight, as it were.
Miss Jewett: Carry the full freight, no indeed. I was thinking only of having a fairly positive thrust at the very beginning as far as equality of men and women are concerned, before you move on to other distinctions.
But I would still improve Section 15, indeed, I would like to ask one or two questions about that.
You have proposed that the notorious, as it has now become phrased before the law, be left in so that the courts will know that they still got that kind of a case that there are interpreta-
tions, but that it be preceded by the phrase “equal rights in law.”
When I was mulling this over in a very amateurish way I must confess for a speech which I made in the House, I had put I think it was “equal rights in the law”. I am assuming that there is no fundamental difference, that what we are getting at is the same thing, in the very nature of the law itself there shall be a quality.
The Joint Chairman (Mr. Joyal): Mrs. Eberts?
Ms. Eberts: Yes, that is our intention that there be a guarantee of substantive rights as well as procedural rights and that guarantee be up front as it were in the very first phrase of Subsection 15(1).
Mrs. Jewett: And in law or in the law about the same.
Mr. Chairman, one reason I am pursuing this a little now is that I hope that when we come to introducing amendments in this area we will be guided to seine extent by this excellent brief in our amendments.
Moving on then, there is a lot that one could ask about 15(2). I am sure that the bases upon which there should never, ever be even a reasonable distinction made, should probably be fairly narrow. I would perhaps make it even narrower than you do. But I wondered, when you come to Subsection 3 why it refers only to Subsection 2 because I would have thought that affirmative action is desirable not only in those areas where no reasonable distinction may be made, but also in some areas where a reasonable distinction may be made; for example, those with a disability.
The Joint Chairman (Mr. Joyal): Professor Baines?
Professor Baines: We will draw your attention to the fact that both the existing Section 15, Subsection 2, as it sits in the Charter now and our proposal which becomes 15, Subsection 3, are permissive sections that deal with specifically what we would call the prohibited classifications, and, as such, it is necessary to relate back to the section tier strict scrutiny group that we set up in 15, Subsection 2. But there is nothing to prevent an affirmative action program that, for example, provides employment opportunities for handicapped persons as, for example, the federal Public Service does at this time. There is nothing to prevent that kind of program existing. 15, Subsection—whether it is in the present version 2, or our version 3, are purely permissive sections and they do not control the whole area of permissibility. If someone then wanted to challenge the handicapped program that exists in the federal Public Service, it would be challenged under the first tier test that we established as the test as to whether or not the program is reasonable. I would be very surprised if it were not reasonable.
Miss Jewett: Okay, thank you on that.
On Section 24, that seems to be very clear and very desirable, the amendment proposed there. Section 26. I think my colleague Svend Robinson, will have a comment on that.
29(2) I think we cannot help agreeing that the moratorium should be removed, we talked about that earlier today. There is some feeling that it would be such a colossal task for the legislatures and the federal parliament to accomplish the task of removing the inequities in present legislation that it would take quite a long time. But I think from what you have said, one does not want to do anything to encourage them to take a long time. So, I think on balance, we would agree with that, and indeed with your new Section 2 of 29 and Subsection 3 of 29. So I would simply wind up by saying that I hope all of us, as I said at the beginning, will be ready to move amendments when the time comes so that we will ensure, and I am very happy that you want to have a Charter entrenched, that is certainly my view, and as I said earlier today, there is no reason to believe that entrenching the same words is going to have any impact whatsoever on either legislatures or courts and the words indeed must be changed and a clear message given to both legislatures and courts.
So I am delighted that you favour the entrenchment and hope like you, and perhaps if you get even more coupons sent in, I am pleased to hear 12,000 have come in. By the way, were they from individuals or from groups?
Mrs. Anderson: From individuals.
Miss Jewett: All from individuals, well, that makes it even more impressive. I hope that they continue to come in and I am grateful for myself at any rate, to have had the opportunity to hear this presentation.
The Joint Chairman (Mr. Joyal): Thank you very much.
Mr. Mackasey: Can I just say a word relating to Mrs. Jewett. She earlier in her testimony said we had come a long way. I was tempted at the time to say a long way from the day when Miss Jewett and the late Miss Judy LaMarsh attempted to invade the Rideau Club, or had you forgotten that?
Miss Jewett: Don’t remind me.
The Joint Chairman (Mr. Joyal): Thank you Miss Jewett.
I would like now to ask for Honourable Senator Bird.
Senator Bird: Thank you, Mr. Chairman.
I would like to congratulate you and to convey my best wishes to you.
I think it is an excellent brief, and I am very proud of the way you have supported the things that you have said. I do not agree with all of them and I would like to mention these in the small time that is left for me because there are other people who want to ask questions.
It is a source of great satisfaction to find that you have joined the voices of the Jewish Congress, of Gordon Fairweather, the Human Rights Commissioner and the National Action Committee in asking that they be sure to entrench a Bill of Rights. This does not surprise me because I know the
way women feel and for generations and, for centuries, women have been le deuxieme sexe and they have not had the rights which they should have.
When I spoke in the Senate to the resolution, to the motion to ascend the resolution to this Committee, I took it for granted that what the Committee was here for was to go over every clause and make sure that the wording is absolutely perfect, and that no court in the land would misinterpret the intention.
Now, I think that everyone at this table would agree that it is the intention of the people who wrote that resolution to protect the rights of women and I hope also the rights of men and that, therefore, what we are doing here today is listening to you who are lawyers who have worked hard on this to get the very best wording that is possible. I have often become rather shocked by the—I was going to say the ineptitude, but I do not want to be rude about the press—but the lack of understanding by the media or the press when they say that the resolution was “attacked”, I do not think that any of the people who have appeared before us since I was here have attacked it, they have merely said the wording should be changed and that is what we are trying to do and that, therefore, I am very glad that you have made this point because, of course, that is what we hoped to do for posterity and for the years ahead.
Now, there are a number of questions that I think I would like some enlightenment on, if I might.
First of all, I was interested because the Jewish Congress did not like everyone either. You want every person and yet here I have it in my hand the Charter of Universal Declaration of Human Rights which is the very carefully-prepared U.N. Charter and which was signed by about 80 nations, including Canada. It was unanimously accepted. In it they use, in every article, everyone has the right and in the French text it says “Toute personne”. I presume that you have a pretty good reason for wanting to change this. You explained it, but I think perhaps the government is not being so unwise when it uses what is a document that has been accepted by every nation in the world.
I see that you were wanting to put something across there. Should I leave that for one question or shall we just leave it?
The Joint Chairman (Mr. Joyal): Mrs. Eberts?
Ms. Eberts: The present Canadian Bill of Rights, as we point out in our brief, uses a combination at least in the English version of individual and of person and when the Bill C-60 was considered by the Lamontagne-McGuigan Committee of this House. they considered whether it would be more desirable to have uniform use of the word “individual” or uniform use of the word “person” in a new Charter of Rights.
It was their recommendation that it would be more desirable to have uniform use of the word “person” because that emphasized not only the individualization of those protected by the Charter, but also their human dignity. It is in the context of suggesting that there is no real reason for changing the basic
thrust of the Canadian Bill of Rights, but there is a reason for choosing between the two terms used in the Bill of Rights that has motivated our suggestion.
Senator Bird: Well, I think that would help the Committee if they decide to change the wording. I think that Section 1, you covered the grounds very well and so have other people who have appeared before us but I don’t think I need ask about that because I think that the Committee understands very well why that Subclause should be removed.
I was interested in Section 15(1) because of course when I read it myself I was disturbed by it and I noticed that in Dr. Baines’ submission, background paper which she prepared for you, that she suggested a number of forms in which that change could take place and I was interested in the wording of the American Equal Rights Amendment which has come to such a sad pass and I wondered whether you had just turned it down because of what has happened in the United States when the forces of reaction had destroyed what women hoped would give them, entrenched rights in the American constitution, and “let me read it to you because I wondered why you did not accept it, It seems to be a matter of prepositions: “in”, “under”, “before”. They use ‘under’ and I will read it putting Canada in instead of the United States:
Equality of rights under the law shall not be denied or abridged by Parliament or by any provinces on account of sex, race, colour, national or ethnic origin and religion
It seems to me that that was short and to the point and I always think once you begin to get into too many words, into too many subsections, then you are going to get into trouble. I wondered why you did not accept that, Who is going to answer that?
Ms. Anderson: I think Professor Duplé.
Professor N. Duplé (Professor, Laval University): I don’t think I have heard all of the question.
Would you be so kind as to repeat, please?
The Joint Chairman (Mr. Joyal): Senator Bird, your question was not heard, would you put it again.
Senator Bird: Yes, thank you, Mr. Chairman.
I was asking why you had not used the wording of the Equal Rights Amendment and then I read the Equal Rights Amendment and perhaps I should read it again, just to refresh your memory:
The quality of rights under the law shall not be denied or abridged by Parliament or by any provinces on account of sex, race, colour, national or ethnic origin and religion
It seems to me that that says it very clearly and you are not getting into trouble with a lot of phrases.
Professor Duplé: Unfortunately, we feel that in our jurisprudential context we cannot rely on the courts to interpret the
wording included in a charter, and which would be quite similar to that included in the Canadian Bill of Rights.
We want to be sure that the interpretation of the wording of Section 1(d) and the Canadian Bill of Rights will not occur again. We want to eliminate all possibility of such an interpretation, in the clearest terms possible. That is why we feel it is preferable to state precisely that every person must have the right to equality in the content of the law, and not only before or under the law. So . . .
Senator Bird: It says under the law. Sous la loi.
Professor Duplé: However, we want more, we want the section to be even more precise, that the terminology used be much more precise and that is why we ask for protection of equality not only before the law, but in the law in the content of the law itself.
Senator Bird: Thank you very much. This will certainly help us in our deliberations.
Under part 2 of Section 15. Now, I am not trying to be difficult but I simply do not understand two things: first of all, you are worried about a private company or employer using affirmative action for the wrong group. Well, surely the courts would bring that out very quickly, I would think; but are you suggesting in order to have an affirmative action program, for instance, in the public service, as I hope we have that you would have to have an act of parliament, that is you would have to get permission from Parliament or from the legislature every time you brought in an affirmative action program. You would have an awful lot of acts, it would seem to me to be rather awkward and I do not understand.
Professor Duplé: We feel that any program, whether it is positive or negative, will have some incidence on other groups of the population which are not beneficiaries, or who are not affected by such a program.
That is why we feel that it is extremely difficult to let the legislatures, or the Government of Canada, or the provincial governments establish programs without any legislative framework. We prefer to encourage those programs which are supported by law. And indeed that is why we are asking that the programs be established under the law.
Senator Bird: This seems to me with all due respect a rather awkward way of ensuring them but I would leave that to the Committee to discuss. Do I have time for two more questions?
The Joint Chairman (Mr. Joyal): I am sorry, Senator Bird, but I think that Ms. Eberts wants to add to the answer as given by Professor Duplé.
Ms. Eberts: There was a further point that we chose the language of our proposed Section 15(3) rather carefully to say that it limits the authority of Parliament or the legislature to authorize any program or activity envisaging that there may well be general legislation on the subject of the public service which would enable the passage of regulations or the passage
of guidelines or directives to implement a particular program and thereby achieve flexibility, but that the basic policy decision as to whether, for example, the legislation would allow the Public Service Commission to promote programs designed to achieve equality should be a legislative one. It is not each particular program that would have to be authorized but there would have to be an initial grant of discretion to the body setting the program up so the legislature would have passed on the principle.
Senator Bird: I understand. Now, there were two other points, have I time, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Yes.
Senator Bird: On Section 24, which you are dealing with on page 17, it is my understanding that the proposed charter supercedes all other legislation and that therefore the inequities of the Indian Act which discriminates so greatly against Indian women will be abolished automatically after the three year period is over if it is not already changed, and therefore, I think that it is an example of the importance of entrenchment, certainly, but it also I think is one that is not worrying me too much at the moment. I can see Ms. Eberts looking doubtfully at me and I think you better say something on that.
The Joint Chairman (Mr. Joyal): Ms. Eberts.
Ms. Eberts: When we looked at Section 24 it was unclear whether it would preserve the result in the Bedard and Lavell decision although we certainly take account of the effect that Section 15 and Section 25 are meant to have. Because of the lack of clarity and because of the desire to clarify now while it is possible to do so rather than force Indian women to again have to clarify in the courts, we want to make assurance doubly sure by adding this provision in case the section could be interpreted to preserve the declared right in the Bedard and Lavell case to discriminate against Indian women. It may well be that the Indian Act is changed by the government pursuant to the signal of the Charter of Rights but in the event that it takes a while to do that, we want it to be at least clear that Bedard and Lavell is not preserved.
Senator Bird: The wording of Section 15(1) perhaps would cover that worry.
In Section 29 you discussed the idea that three years before the legislation is applied is much too long and you think all of the provinces could change all their statutes in six months and you quote the Royal Commission on the Status of Women, which after ten years has only two-thirds of the recommendations that have been implemented. Now, there is a difference here. The Royal Commission was instructed to enquire, report and make recommendations about what steps the federal government should take to give women equal opportunities in every aspect of Canadian Society, but the Government was under no obligation and neither were the provinces nor the private sector to whom we made our recommendation, there was no obligation. while in this case, there is a definite
obligation that in three years time it is law and no nonsense and the laws have to be changed.
Now, I know how impatient women are and heaven knows I am impatient myself having been Chairman of that Commission, but I do think there is a difference between the recommendations of a Royal Commission and a Charter of Rights which lays down a certain rule and a certain cut-off day.
I am just saying this, I suppose, to lay at rest the worries and doubts of all the thousands of women who are going to sleep better at nights when they have an entrenched Bill of Rights.
Thank you, monsieur le president.
The Joint Chairman (Mr. Joyal): Ms. Eberts, do you want to add to that proposal?
Ms. Eberts: I do not know whether I want to add to the proposal.
The point that the governments are legally obliged to enact the reforms necessary to bring legislation into line with the charter is one that we do not quarrel with but we wish that if that is the effect, if that is intended to be the effect of Section 29, it can be made explicit. Right now it seems as if the intention to bind governments to change their law in three years is implicit in Section 29 and not explicit. Moreover, the problem remains of what happens to women who are denied the recourse to the courts during that three year period. It may well be, as a neophyte trial lawyer I think I can say that if you have to wait three years, your witnesses have gone, your facts are not there and those women are going to be in the bitter situation of having their rights guaranteed on paper and they are not going to be able to secure their achievement.
So if it is desired to have a moratorium for three years, then we would regard it as most desirable to make two things explicit: first of all, that governments are bound to embark upon a program of reform; and secondly, that no one is going to lose the right of recourse to the courts in the interim and in that kind of situation where your understanding of the bill is made explicit, then the moratorium would be easier to live with.
Senator Bird: Then there could be changes considered to make that absolutely explicit?
Ms. Eberts: Yes, indeed.
Senator Bird: Well, I hope the Committee hears your message and thank you very much indeed.
Ms. Eberts: Thank you.
Senator Bird: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): The Honourable David Crombie.
Mr. Crombie: Thank you, Mr. Chairman.
Let me be amongst those who welcome the brief and the outstanding presentation of the delegation. I wonder if I might direct your attention to Section 7 and Section 12 of the resolution before the Committee. Section 7 dealing as you are aware with the right to life, liberty and security of the person,
etc. Section 12 dealing with everyone having the right not to be subjected to any cruel or unusual treatment or punishment. The question is a twofold one:
Do you see anything in either of those two sections which would affect the current debate, first of all over the question of abortion, and secondly, over the question of capital punishment?
Mrs. Anderson: Well, I am afraid that we did not address that. Our concern when we drew up our brief was to address once and for all on this really historical occasion, equality for women and entrenchment of equality in a Charter of Rights. This is what we concentrated on in our brief and this is what the Council discussed and passed last week. So I am afraid I cannot really answer those questions.
Mr. Crombie: Particularly when you saw fit, which I think is not unreasonable, to change Section 1 by cutting out the qualification “subject to” and the words following that, there was no consideration of its effect on either abortion or capital punishment; is that right?
Mrs. Anderson: No.
Mr. Crombie: It might be of interest to you to know that both the Civil Liberties Association and the Human Rights Commissioner had some thoughts on that and you may want to consult those.
Mrs. Anderson: I think Professor Duplé has some further thoughts on that.
Mr. Crombie: Thank you.
Professor Duplé: Yes, with respect to this amendment, that wording in Section 12 is identical to that contained in the Canadian Bill of Rights.
The Canadian Bill of Rights also guarantees to everyone the right not to be subject to any cruel and unusual treatment or punishment. However the Supreme Court has stated that capital punishment is perhaps a cruel treatment, but it is not unusual, since it exists from time immemorial.
And so the Canadian Bill of Rights did not prevent the application of capital punishment. when of course it was prescribed within the law.
Therefore, I must presume that the inclusion of such a guarantee, an identical one in the Charter, would not prevent the application of capital punishment, obviously.
Now the Council has not taken any position as to capital punishment itself, so we cannot comment on that point.
Also, you must have noticed that we propose to replace the various terms used at the beginning of each article by replacing it with the word “person” rather than using the terms “anyone”. or “all”. We make no attempt to solve scientific problems which have not yet been solved, since as determining if a foetus is a person “or not, or when it does become a person, we refer the solution to that problem to more competent hands.
Mr. Crombie: Thank you very much. In your change in Section 24, in order to enhance the status of Indian women, which I am sure everyone on the Committee supports, I was concerned that you used the words “men and women”, as opposed to “male and female” and I wondered, it is an open question, I wondered if there is any difference in the law between using the words “men and women” as opposed to “male and female”? Obviously “men and women” connoting age as opposed to merely sex. Did you see any difference in relation particularly to existing social programs or any proposed social programs where distinction, to use your term, in relation to programs is very much based on age?
The Joint Chairman (Mr. Joyal): Ms. Eberts.
Ms. Eberts: We would tie the answer to that, I think, back to our proposal for Section 15(2) in our suggestion for change, and that is that we contemplate that the question of age discrimination and its reasonableness or age distinction and its reasonableness will be considered on a case by case basis rather than on the basis of broad categories. There is nothing in our Section 15 as proposed, which in our view would prevent a case by case consideration of the reasonableness of a distinction based on age.
We had in mind the fact that many jurisdictions have laws relating to the custody of children, for example, and all kinds of distinctions based on age which really militate against having an iron-clad, absolute or categorical provision, but our language we hope will accommodate these problems as they come up one by one.
Mr. Crombie: It is a welcome change because I think many entrenched rights in the world do not include age for that very reason. However, it is with Section 15(2) that I come to my next question if I could.
While one could understand and indeed applaud excluding age because of its impact on social programs, I also note that you did not include in your list of case by case protective areas, you use sex, race, colour, national or ethnic origin or religion and you did not include either sexual orientation or the handicapped, mental or physical, in your preferred list and I wondered why you did not.
Ms. Eberts: I think that the rationale would be the same as that for age and it has been pointed out by, for example, the Lamontagne-McGuigan Committee that to include marital status in a list of distinctions that are always regarded as unreasonable would create practical problems wiht the administration of a number of social programs, for example. and our formulation remains the same: we have two tiers; where the ground is specifically mentioned in Subsection 2 of our proposal we intend that to be a signal to the courts that distinctions based on those grounds are categorically wrong, we should never have them.
Mr. Crombie: Which problems?
Ms. Eberts: Race, sex, colour and so on. Whereas distinctions based on other grounds can be judged by a court to be reasonable in certain circumstances and unreasonable in other circumstances, so that once again, as I mentioned in my initial
presentation, a statute which denied a driver’s licence to someone on the basis of marital status could well be challenged and found to be unreasonable, even though marital status is not explicitly mentioned. So that we hope that our formulation would be flexible enough to cover both sort of hard core types of distinction and also those that required more flexibility. Also, there is nothing in our formulation to prevent either the province or the federal government from passing detailed and articulate legislation to prevent specific kinds of discrimination on the basis of any category.
Mr. Crombie: So it is clear in my own head, Mr. Chairman, you have in your two orders of protected rights, as it were, age, sexual orientation and handicapped, mental and physical, are clearly in the second order which need to be dealt with in a case by case manner as opposed to categorical; is that what you are saying?
Ms. Eberts: Yes, that is right.
Mr. Crombie: Were you surprised to find yourself in a different category than the Human Rights Commission on the matter?
Ms. Eberts: Well, I think the Human Rights Commissioner, although he proposed first of all the alternative of having no explicit categories and secondly, the alternative of having vast numbers of them, recognized in his written presentation to you that within those numerous, numerous categories that he suggested might be there, there would be the need for different interpretation and he suggested in his written submission that he would say that the courts should be told that race and sex could never be reasonably justifiable and our proposal is in accord with that submission of his but we think that our proposal provides that direction to the courts, that his proposal unfortunately where you have a long list of categories makes it very difficult for the court to extract guidance as to which are to be regarded as the categorical ones and which are to be regarded as the sort of first tier of reasonableness ones, whereas ours makes it fairly clear how the distinction is to be drawn.
Mr. Crombie: I might say, Mr. Chairman, and indeed with kindness, that you may want to familiarize yourself with the brief of the Canadian Association of Mentally Retarded who take a somewhat different view.
I have one final question, if I could, Mr. Chairman, and it related to Section 1. I noted that at the bottom of page 24 and the top of page 5 your views with respect to Section 1 as it now stands, and we all agree that Section 1. I think we agree that Section 1 is clearly the centrepiece from which all other matters flow, that if we do not have clarity in Section I then it is difficult to understand where we go from there. Your comment on Section 1 says that Section 1 is, to be succinct, deplorable. In your view if Section 1 is allowed to continue in its present form there is no point in having the rest of the charter. That is all in one clause, it is not even a subjunctive clause. Our liberties and rights will be in greater jeopardy while guaranteed by a charter containing Section 1 than ever they have been.
Now, I read that again because it struck me that it is almost word for word but clearly within the spirit of the comment made by Messrs. Medanick and Borovoy and Tarnopolski on behalf of the Canadian Civil Liberties Association, and indeed in a long and lengthy letter to the Globe and Mail from Clayton Ruby, the civil rights lawyer in Toronto, probably of your acquaintance.
They are of the view, and certainly it is clear to us that they were of the view that Section 1 as it now stands is not only deplorable, in your words, but indeed useless or, more importantly, dangerous. I wondered if you could review your thoughts with respect to Section 1 in this way, and I would ask you one final comment on it: would you agree with the Civil Liberties Association that if we leave Section 1 the way it is, it will be on the one hand for certain sections useless because it nullifies the charter, as you yourself point out on page 25, or indeed we entrench the inequities that a charter is supposed to indeed rectify and therefore is to be considered dangerous? Would you find any difficulty in appreciating and agreeing with those views of the Canadian Civil Liberties Association?
Mrs. Anderson: I think our position is somewhat different in that, as we stated in the beginning, the council has taken the position, and this is from a long historical point of view, where British Common Law did not protect women, legislatures did not protect women. The Canadian Bill of Rights has not protected women. So that an entrenched charter of rights properly worded is much to be desired.
Mr. Crombie: My concern, if I could, and I will make this the final question, I clearly understood the answer before but I am somewhat at a loss and the reason that I went through a review of the comments made by the Canadian Civil Liberties Association is that what I hear back again, and I say that with the greatest respect, believe me, is that you are saying any charter, any charter is better than no charter and I just do not get that from your own brief and I can not believe that you really mean that, with the greatest respect, so it must be something I am missing.
Mrs. Anderson: I think you are.
Mr. Crombie: And I tried very hard to understand it.
Mrs. Anderson: We tried very hard to get across to this august committee that we applaud the intention of an entrenched charter of rights’ We support it. But let us get it right, because if we get it wrong we are going to be left with it for a very long time to come.
Mr. Crombie: Thank you very much, we agree.
The Joint Chairman (Mr. Joyal): Madam Campbell.
Miss Campbell: I, too, would like to congratulate you for your well prepared brief and I would say we have had no assent to incorporating equal rights for men and women in the charter or entrenching it.
The purpose of the committee is to hear proposals such as yours, and I would like to say the points you have raised in Section 3, concerning vote limitation, and Section 26, as regards excluding Section 13—evidence, and Section 29, the moratorium and to the extent that you give some type of
reasonable implementation of getting equal status, by way of an omnibus bill or otherwise; and I would have to say I commend you for the research you have done, and I would like to see some of those facts incorporated later.
I would hope that you have had some consultation, since the tabllng of the resolution, and perhaps some consultation with the Ministers of Justice. or the former Ministers of Justice, when they were talking about entrenching bill or rights. Surely, you must have had some consultation. Are you now indicating that since the tabling of the resolution you have had no consultation with the Minister of Justice?
Mrs. Anderson: Since the tabling of the resolution, we have endeavoured to meet with everyone we possibly could, including members of the Department of Justice, and certainly to try and get our concerns across. Hopefully, that has been accomplished.
Miss Campbell: I like your proposed clause on Section 15(1) on equal rights and nondiscrimination, because I feel it covers a broader area; as well the human rights commission mentioned it the other day. You have probably looked at Mr. Fairweather’s brief on human rights. I would like to get your views. We are probably going to be faced with incorporating many views, and that one I like very much. I would like to know how you relate to it. I have photocopied the English and the French for anybody who needs it.
On Section 1, it would do away with the limitation. If you go to Mr. Fairweather’s preferred proposal for change, which was 2(1) of his brief. It says:
1.(1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such limits prescribed by law as are reasonably justifiable in a free and democratic society.
It then goes on to talk about:
(2) no limitations on the legal rights or the non-discrimination rights set out in this Charter may be made under this provision.
And the final one that I like here, of course, is:
(3) This Charter guarantees the equal right of men and women to the enjoyment of the rights and freedoms set out in it.
The reason why I say that is if I read that with Section 1(3) and Section 25—perhaps Mrs. Eberts you might want to comment, but that would do away with the type of case that we had in Lavell’s case. It would, in my view, go so far as to make native women equal to native men on reservations. I wonder if anybody would like to comment on that point?
Ms. Eberts: Well, for my part, I think the comment I made before to Miss Jewett’s question. comes up again here. The formulation in Section 3 of the proposed Section 1 is a valuable addition to a charter of rights. It would be most desirable to have such a provision. But if that provision were in the context of a charter of rights along the lines that he proposes in his other recommendations, that is, with a very
general Section 15 or an extremely broad Section 15 in terms of the list—and I do not know that this would do the job.
I will get into Section 15 in a minute but it was just that he cut away the general limitation to the Parliament or other bodies and “reasonably justifiable” could be argued in terms of terminology later.
But I am just saying that that general limitation is not left there for the courts to come back to what was the intent of the legislature. Because of that, I like that general statement of equality.
But you have your reservations on Section 15.
Miss Campbell: Would it not do away with the Lavell case?
Ms. Eberts: Well, I do not wish to be over technical here. In my view there are some problems with his Section 1. I do not think it all fits all together quite as it should. He says in his subsection 1 that the guarantees of rights and freedoms are subject only to such limits prescribed by law as are reasonably justifiable in a free an democratic society, and yet elsewhere in his written presentation he talked about that phrase being used to limit the non-discrimination rights, that is to say, well is it reasonably justifiable to have a distinction in law on the basis of mental handicap, for example; and, in spite of that discussion in his brief, he has put in subsection 2:
(2) No limitations on the legal rights or the non-discrimination rights set out in this Charter may be made under this provision.
So he seems to be negating in subsection 2 what he explicitly said in his other comments.
Because of that contradiction, I am not exactly sure what is the force of his subsection 3. I do not feel I can comment any further on the idea behind subsection 3, because I have difficulties with his specific wording, and it is difficult for me to discuss this within the context . . .
Miss Campbell: Unfortunately, Mr. Fairweather did not have as much time as you probably had in this committee to expand on it or to have more than three questioners.
Let us go to Section 15. You have already said you like the list. You said at page 14 that you would go with those because:
We believe that these few additions reflect Canadians’ views about what sort of discrimination is most grave.
You mention here today that you do not like age, and you would not include handicap, both marital status or sexual orientation.
I would like a little broader reasoning as to why you consider what you have included there—if you are going to go to a list, and I personally do not like a list because it has limitations within a legal context, unless you use words as the Civil Liberties people said. I personally would prefer to see a general statement of equal rights for all persons and no list and to revert to the Canadian Human Rights Act for expansion of
the list and the reasonableness of future needs as they come up; but if you are going to start listing, then you might as well list as many as there are.
Ms. Eberts: I will try to be fairly brief. Our proposal has basically two tiers of protection within the context of a general guarantee. The first tier is that group which will never be regarded as a reasonable basis for distinction. I draw your attention to the remarks we have quoted from the speech of the Prime Minister which you will find on page 12, where he says:
There are, after all, only two permanent conditions attributable to human beings, one is sex, the other is race. All other distinctions from which discrimination may grow are temporary in nature or are subject to change.
That is not the complete rationale for our choice but it is to some extent the rationale for our choice. But I will continue. We propose that there be certain hard-core categories which, in our contemplation, could not give rise to reasonable distinction.
It is not reasonable to determine a right to vote, to drive, or whatever on the basis of your sex or race.
With regard to the other areas that are beginning to be introduced into human rights legislation and I would say Mr. Fairweather’s legislation does not contain a protection against discrimination on the basis of sexual orientation anyway: with regard to those, it is our view that they lend themselves more readily to a consideration on the basis; is this particular distinction reasonable in the context in which it is proposed? Is it reasonable in the context of an income maintenance program to draw a distinction on the basis of age, or physical or mental handicap? So that you could consider, for example, a whole range of social legislation which would be invalidated by absolute categories and we do not want that to happen.
We want the courts to have the flexibility to say. “Look, this is a program designed for handicapped persons.” We do not want it to be struck down because of a categorical idea of what is just. We want it to be upheld if it is reasonable. By the same token, we do not want the courts or the legislature to be given all sorts of leeway to apply stereotypes to the issue of what is reasonable in the area of sex and race discrimination and the other matters which we have made.
So, our proposal, if you will, is an attempt to give some juridical structure to the really laudable sentiments and philosophy behind Mr. Fairweather’s proposal. I do not think we differ from him in desire, but we do in the structure as to how we propose to achieve it.
Miss Campbell: One last question. Will what you are proposing protect the individual or persons in the private sector as well? Do you see it as protecting the private sector?
Ms. Eberts: I think on this basis we envision a very significant role for the provincial legislatures and the federal government in the enactment of legislation.
But, in the course of judicial evolution of these concepts in the Unites States, I believe you are no doubt familiar with the
idea that certain programs that received state funding have been regarded as touched with sufficient state element or governmental element to come under the scrutiny of the section.
Now, we are not saying that Canadian jurisprudence would go that way, but it is possible; and I am convinced that some bright spark is going to argue it sooner or later.
The Joint Chairman (Mr. Joyal): Thank you very much. I see the time we have agreed to spend with our witnesses is over. I must say it has been really a pleasure to have Mrs. Anderson, Madame Pepin, and Mrs. Eberts, le professeur Nicole Duple and Professor Baines for their attendance tonight and for their very analytical brief and the answers they have given tonight, which have all been made available for honourable members of this committee.
Thank you very much. The meeting is adjourned.
Mr. Robinson: Mr. Chairman, just a brief point of order. I wonder if, in view of the fact that the Advisory Council on the Status of Women have had two hours, but they have stated there was no consultation with them before this particular proposal was drafted, and I understood that the answer of the President to be that, indeed, there has been no consultation since with the Minister of Justice, though there may have been consultation with officials in the Department of Justice: I wonder whether, in view of the importance of this particular brief and the fact that it is a fairly complicated brief, touching on a number of areas, whether it might be possible for the steering committee to consider at least the advisability of inviting this particular group back for further questioning.
I think it might be appropriate for the steering committee to at least consider that possibility, because I know that the Department of Justice officials would want to be further enlightened and certainly there are a number of areas which have not yet been touched on in the course of questioning which I believe should be touched on.
I would, therefore, request that the steering committee consider the advisability of inviting this group back.
The Joint Chairman (Mr. Joyal): Thank you very much. There are many members of the steering committee around this table, and they are supposed to be holding a meeting after the adjournment. and I am quite sure they will take your suggestions into consideration.
Mr. Mackasey: I would like to make the same point, Mr. Chairman, that there are many members of the steering committee. Perhaps the alternative would be, if we have to find one, is for the Committee to use persuasion on the officials of the Department of Justice who obviously must be working overtime to bring in some of the desired amendments that are very obvious particularly to Section 1.
The Joint Chairman (Mr. Joyal): Thank you very much.
Thank you very much, this meeting is adjourned until 9 h 30 tomorrow morning.
From the Federation of Canadian Municipalities:
Mr. Dennis Flynn, President;
Mr. Glennis Perry.
From the National Action Committee on the Status of Women:
Ms. Lynn McDonald, President;
Ms. Jill Porter, Member of Executive;
Ms. Betsy Carr, Member of the Executive;
Ms. Mary Lou McPhedron, Member of the National Women and the Law Association.
From the Canadian Bar Association—Newfoundland Branch:
Mr. Raymond J. Halley, Q.C. President;
Mr. Ed Hearn, Member.
From the Canadian Polish Congress:
Mr. Jan Kaszuba, President;
Mr. Marek Malichi;
Dr. Jan Federowicz.
From the Advisory Council on the Status of Women:
Ms. Doris Anderson, President;
Ms. Lucie Pépin, Vice-President for Eastern Canada;
Ms. Mary Eberts, Legal Counsel;
Prof. Nicole Duplé, Laval University;
Prof. Beverly Baines.
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