Document Information

Date: 1981-11-17
By: Alberta (Legislative Assembly)
Citation: Alberta, Legislative Assembly, Alberta Hansard, 19th Leg, 3rd Sess, 1981 at 1677-1679.
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1677

Constitution — Charter of Rights

MR. NOTLEY: Mr. Speaker, I’d like to direct this question to the Premier. It’s my understanding, from the ad hoc Committee of Canadian Women and the Constitution, that today the federal government polled provincial governments on two questions dealing with the Charter of Rights: one dealing with Section 28, the equality provisions; the other dealing with the rights of disabled persons. Is the government in a position to advise the Assembly of the position of the Alberta government with respect to the notwithstanding provision, as it relates to the equality provisions and the rights of disabled persons? Would the government of Alberta be prepared to see the notwithstanding clause dropped as it applies to those two provisions of the Charter of Rights?

MR. LOUGHEED:First of all, Mr. Speaker, the way the hon. member phrased the question seems to me to create some difficulty in response. The implication of the question is that something is lost by the notwithstanding provisions, and that’s not so. Something is gained.

The notwithstanding provisions permit the elected representatives of the people from time to time in the provinces to respond to the needs and aspirations of citizens. Quite clearly, as we have determined in this Legislature with our first and second Bills, the Bill of Rights and The Individual’s Rights Protection Act, such a notwithstanding clause is an important additional protection to people such as the disabled. If a court should rule in a certain way, by way of interpretation, that is considered by the citizens of the time as unfair and certainly not in accordance with the aspirations of our disabled citizens, we could be bound to that judicial decision for all time. Therefore, that judicial decision would continue until there was an amendment to our constitution. So the disabled people of our country and province are much better protected by having the supremacy of the Legislature, rather than the supremacy of the courts.

The misunderstanding of that situation throughout the country is unfortunate with those who hold to that view. Our position is that with regard to the equality rights — that is, Section 15 — there should be a notwithstanding provision to protect the disabled from a situation of an unfortunate judicial decision, and have the citizens, through their elected representatives, right that wrong when it occurs.

MR. NOTLEY: Mr. Speaker, a supplementary question to the Premier. It’s my understanding, however, that the federal government has polled the provinces. Perhaps the Premier could confirm whether in fact that has occurred in the last day or so.
My direct question is: is the continued support of the accord by the government of Alberta contingent upon the application of the notwithstanding provision to Section 15, the equality of rights provision, as well as the disabled clause? Or, should other provinces agree to the dropping of that notwithstanding provision, would the Alberta government still continue to support the accord?

MR. LOUGHEED: Mr. Speaker, it’s fundamental to us that the supremacy of the Legislature be there, rather than the supremacy of the courts. We believe that the citizens of our province, as we’ve shown under our Bill of Rights and The Individual’s Rights Protection Act, are much better protected by having a situation of supremacy of elected representatives over supremacy of appointed judges.

MR. NOTLEY: Mr. Speaker, a supplementary question for clarification, so there is no misunderstanding. Is it a correct assessment of the Premier’s statement that Alberta’s continued support of the accord is dependent upon the inclusion of the notwithstanding provision as it applies to those two sections, or would the Alberta government agree to dropping that section if other provinces chose to?

MR. LOUGHEED: Mr. Speaker, I explained in this Legislature on November 6 that our position is that we entered into an accord, and one of the fundamental posi-

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tions of this government was that with regard to the three specific areas — fundamental freedoms, legal rights, and equality rights — it was essential that we had the supremacy of elected people over appointed people.

Rights of Disabled Persons

MR. NOTLEY: Mr. Speaker, a supplementary question to the hon. Minister of Labour, dealing with rights of disabled persons in Alberta in this International Year of Disabled Persons. Is the minister in charge of the Human Rights Commission able to advise the House how many exemptions for affirmative action have been allowed pursuant to the Act of the Legislature, in view of the Premier’s statement about the supremacy of the Legislature as opposed to the supremacy of the courts?

MR. YOUNG: Mr. Speaker, there has been one exemption, and that is a very broad exemption dealing with the disabled.

[…]

Constitution — Charter of Rights
(continued)

MR. LOUGHEED: Mr. Speaker, I wonder if I could supplement the first answer I gave to the hon. Member for Spirit River-Fairview. I don’t have the exact text of the question which he raised with me on a very important matter, and I rather thought his supplementary questions might lead me to it. I was asked with regard to the matter of equality rights in the constitution, as far as males and females are concerned, involved in two sections of the proposed constitution. The hon. Member for Spirit River-Fairview asked me about Section 15, and I responded as precisely as I could.

I do not believe he asked me with regard to Section 28. That section is very important, and perhaps I could read it. It has been the subject of intergovernmental discussions today and yesterday, and I thought members of the Legislative Assembly would wish to know about it. Section 28 states:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

The accord tabled in this Legislature on November 6 provides changes with regard to alterations in the Charter

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of Rights and Freedoms and refers to a notwithstanding clause covering sections dealing with fundamental freedoms, legal rights, and equality rights, period. Such notwithstanding clause does not therefore extend to Section 28. It is the position of the government of Alberta, in discussions across the country today, that it is not intended that the provisions of Section 28, or the intention or thrust of Section 28 as to equally guaranteeing to male and female persons the rights and freedoms in it, are in any way diminished by the accord, and that Section 28 should stand as it is now provided.

MR. SPEAKER: I was going to make an observation about the exercise of a few moments ago, in which we started with a question on the constitution and ended up with the funding for the disabled. I realize that was stretching the idea of a supplementary well beyond any meaning it could possibly have. But I didn’t intervene, because we have an exceptionally short list. I’m making this observation only so that the occasion won’t be used as a precedent, as sometimes happens.