Canada, House of Commons Debates, “Appropriation Act No. 2 (Equal rights of women in the law)”, 32nd Parl, 1st Sess (8 December 1980)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 5500-5502.
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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
5500 COMMONS DEBATES December 8, 1980
~n .r 8 1980NA
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
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
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
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: Regardiess, Mr. Chairman-
Mr. Knowles: Can’t you two professors get along better than
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
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
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
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. AIl 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
aIl 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
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.