Canada, House of Commons Debates, “Appropriation Act No. 2 (Equal rights of women in the law, Mobility Rights)”, 32nd Parl, 1st Sess (8 December 1980)

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Date: 1980-12-08
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 5500-5502.
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[Page 5500]

Miss Jewett: I would like to ask the minister who is responsible for the status of women a few questions which I do not believe have been touched on yet today. One of my grave concerns, as the minister knows-and I hope it is one he shares-is the protection of the equal rights of women in the law, as well as before the law, in the government’s constitutional proposals. Perhaps I should clarify that by saying that this lack of the protection of the equal rights of women in the constitutional proposals has been brought out very vividly by the National Action Committee on the Status of Women and by his own Advisory Council on the Status of Women. Tomorrow morning it will be brought out again. I do not know whether the minister has yet had time to see the brief submitted by the National Association of Women and the Law. It was also one of the main points in the brief given by the commissioner of the Canadian Human Rights Commission. Was the minister simply relying on what the Minister of Justice and the government’s legal experts were saying about section 15 and section 1 ? Did he at any time this summer when the drafts were proposed take a look, as the minister responsible for the status of women, at the actual wording to see if it would in fact provide women and men equal rights within the law? Did he ask the advisory council for their opinion’? As the minister knows they were preparing many papers for a conference which, unfortunately, could not be held in the first week of September, including a brilliant paper

[Page 5501]

to which I have referred before by Professor Beverley Baines on women and the law and the constitution.

I was quite amazed when i asked one of the vice-presidents of the Advisory Council on the Status of Women, Madam Lucie Pépin, whether she, the president, or any members of the council had been asked by the minister if they were satisfied with the protection of the equality of women, and she said that they had not been consulted at all. This struck me as extraordinary considering that the Baines paper came out in August and the council was preparing for this conference and preparing a lot of papers with some very sharp criticisms of the government proposals as being totally inadequate, particularly with regard to the before-the-law clause, but on many other clauses as well.

I wonder why the minister did not consult with the advisory council. Perhaps it is more important now to know whether he has since read with some care their briefs and the briefs of others including the one I just mentioned by the National Association of Women and the Law? If the minister does see the strength of their arguments, will he pursue them with his colleagues in cabinet? In fact, it would be excellent if the minister himself would pursue the necessary amendments to the constitutional proposals because, as the human rights commissioner has said, they are gravely flawed, before the committee. Might he perhaps do that?

Mr. Axworthy: Mr. Chairman, the resolution containing the charter of rights is presently being considered by a committee of this House. As I said earlier today, as a member of this House I look forward with interest to its deliberations and recommendations. The reason for the committee is, as the hon. member suggests, to receive representations from a wide variety of groups and organizations and to use its best judgment to extract what they think is proper, effective, useful and helpful from those representations. Obviously, it will not accept all of them because in many cases the recommendations are contradictory.

Miss Jewett: No, they are all the same.

Mr. Knowles: The women are united.

Mr. Axworthy: One reason why this committee of Parliament was established is to bring the judgment of our peers to bear upon that issue. The inclusion of the non-discriminatory rights in the charter was a major step forward for women in this country on the ground that it entrenches their rights. This has never occurred before and the history of our court cases and our jurisprudence shows that we have suffered from the lack of a clear, fundamental law which establishes basic rights against which other rights passed by statutes of this Parliament or by legislative assemblies would have to be judged.

The difficulty encountered in past court cases in which conflicting statutes are involved-for example, the Unemployment Insurance Act versus the Canadian Bill of Rights-is that the courts have clearly stated-and I would cite for the Supply member’s interest the judgment of Chief Justice Bora Laskin in Curr versus The Queen-that where there are two statutes passed by the same House the courts cannot judge which is of more merit, simply because they have both been passed by the same House with the same authority and the same mandate. In many of the cases which have worked against women’s rights, it has been on these grounds. It was not because of a superior law or a fundamental law. The hon. member is disputing with the Chief Justice of the Supreme Court.

Miss Jewett: That is not a case concerning women. You have the wrong case.

Mr. Axworthy: I presume the hon. member can pit her knowledge against that of the chief justice, and that is her business.

Miss Jewett: You have the wrong case, Lloyd.

Mr. Axworthy: Mr. Chairman, I do not have the wrong case. I have looked at this matter very carefully.

Miss Jewett: No, you haven’t.

Mr. Axworthy: I know the hon. member is a fount of most wisdom in this country, but i think she recognizes that there are legitimate differences on the viewpoint and its interpretation.

Miss Jewett: Just facts.

Mr. Axworthy: Regardless, Mr. Chairman-

Mr. Knowles: Can’t you two professors get along better than this?

Mr. Axworthy: Mr. Chairman, i am not attempting to argue, I am attempting to explain, and I thought that the hon. member wanted an explanation. That was one of the major problems in our courts of law. There was not a fundamental law which gave clear signals to the courts upon which they could make decisions. It is on those grounds that many of the cases were decided against the expansion of rights. The entrenchment of a charter takes a major step forward in providing that clear and abiding signal. That was not something that was analysed in the Baines paper, and while it was a brilliant paper in some respects, it ignored some facts in law.

In the second case, I would point out to the hon. member that the entrenchment of rights in the constitution would have the immediate effect of requiring the legislative assemblies and Parliament to go back and re-evaluate the various laws which are available to determine in what ways they contradict or run against the charter. So, without going to court at all, there is an immediate cleansing of the act, a certain catharsis of the law in terms of eliminating discriminatory clauses. This was discussed in cabinet and this is why the three-year time lag was imposed, so that this Parliament and the legislatures could review the laws in their statute books to determine what would have to be changed in accordance with the requirements to

[Page 5502]

ensure equal rights for people, regardless of their background, age, sex or whatever.

The hon. member would have to admit that this is a major step forward. Even the wording of the act can be changed to strengthen it and it is certainly the intention of members of this government and this caucus to support such cases. That is the reason the committee was established and why it was mandated by this Parliament to use its judgment to see how the resolution and the charter could be improved upon.

The government, the Prime Minister, the Minister of Justice and I have all indicated this to organizations with which we have met. I have met with the advisory council and the national action committee, and perhaps more women’s groups than the hon. member over the last two months, to discuss this matter and I indicated, that we are prepared to look at any proposed changes which would improve upon the law. But we do want to see the committee’s considerations because 1, for one, would not want to impose my judgment on that committee. It has a mandate from this Parliament which I respect, and I assume that it will follow through, listen to briefs put before it, then act and use its judgment accordingly. It is very important that we recognize and respect the due procedures of this House.

It would be wrong for the hon. member to try to create false confrontation where there is none because we have already indicated our interest in improving upon the charter and our interest in looking with favour upon the recommendations of the committee.

Miss Jewett: Mr. Chairman, the reason I was so conciliatory is because I am so concerned about this matter that I want the minister to give it serious attention. That is why I have been trying to talk about it in a non-confrontational way. The fact is, the minister has not read the briefs very carefully or, if he has, he has not understood them.

They are not contradictory. I am speaking now of the Human Rights Commission brief, the NAC brief and his own advisory council brief as well as the National Association of Women and the Law brief. All hone in on the same point so it is wrong to say that they are contradictory. They all point out very carefully that the matter is complex and that entrenchment of the same words will not do any good at all. The most recent brief points out that an examination of the two leading sex inequality cases, Lavell and Bliss, reveals that the decisions did not turn on a difference between a statutory and a constitutional standard for equality. It says that they are not at all confident that the Supreme Court will begin to interpret this clause, which is worded exactly the same as it is in the Canadian Bill of Rights, in a broader way simply because it is entrenched and that in their view these words are likely to receive exactly the same interpretation after entrenchment as before. That is the view of all of the constitutional experts who have helped these groups to prepare briefs. There is no contradiction whatsoever.

The Curr case that the minister mentioned is irrelevant. The Baines paper did discuss it very briefly because it is not relevant to the equality of women.

As to the three-year time period, Mr. Chairman, they have all said the same. The only part of the constitutional document that says this clause does not have to be enforced for three years will prevent a good deal of the inequality that now exists from being adjudicated. This is a very serious question. I am glad the minister has talked to these groups but I am sorry that he did not consult them ahead of time, particularly the advisory council. I think they would have been helpful in drawing up the constitutional proposals in a more reasonable fashion in the first place.

I am sorry that the minister has not taken up the cause more vigorously than he has to date. I would have thought that one way to do that would be to use his influence with the Minister of Justice and his department to ensure that the changes unanimously agreed upon will be made. I hope he will reconsider his rather laissez-faire attitude on a matter that I am sure concerns him as much as it does all the women for whom, in a way, he speaks as the minister responsible for women.


[Page 5478]

Mr. Hawkes: We may explore that when we have more time later this evening. Out of the four major mobility problems the minister referred to, could he indicate which of those would be solved by the constitution legislation of 1980?

Mr. Axworthy: We would hope that we can provide some solution to all of them. The charter of rights would establish a basic standard, a foundation upon which all governments and individuals would know that they have certain rights. Where there are impediments to that, such as the Newfoundland legislation, they could be struck down. But as the hon. member should know, because he is a member of the constitution committee, one of the other advantages of the charter of rights, whether or not it is in a non-discriminatory area, is that it will require governments to go back and check their statutes, their laws and regulations, to make sure that they conform to those precepts of the charter of rights. Therefore, they will have to make a complete re-evaluation to ensure that there is not, within their different standards or codes, that kind of impediment to choosing where they will work or live.

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