Canada, House of Commons Debates, “British North America Act”, 32nd Parl, 1st Sess (26 February 1981)

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Date: 1981-02-26
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 7748-7756.
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Mr. Dan McKenzie (Winnipeg-Assiniboine): […] Senator Cook went on to say:

I quote from Professor Peter Browne, a distinguished member of the Department of history of Carleton University:

“Most of the witnesses before the Special Joint Committee on the Constitution concentrated their criticism on the provisions of the proposed charter of rights. As a result, some of the ambiguities, contradictions, restrictions and omissions have been identified, and may be remedied. What has still not been adequately discussed, however, is the underlying question of whether the ultimate responsibility for defining our basic social values should be transferred from the federal and provincial parliaments to the Supreme Court.”

As a matter of fact, I was just discussing this very subject with my colleague, the hon. member for Qu’Appelle-Moose Mountain (Mr. Hamilton) who happened tonight to be in the company of some judges who gave him a real insight into the dog’s breakfast we will get into if this is left up to the courts. That is the point Senator Cook made in his speech. He went on to say: There are, indeed, many good and sincere people who seem to fell that if we have a charter of rights, and pass over to the courts the duty and responsibility of enforcing and interpreting it, this will prove to be a panacea, a universal remedy or cure for all our ills. Furthermore, they feel that the charter of rights must be placed beyond the power of Parliament, a legislature or the elected representatives of the people to repeal or amend. Those who subscribe to this theory argue that the court can and will do all that is necessary to protect and safeguard all our rights. Will this indeed be the result?

He gives an example of a Supreme Court case of a number of years ago. Canadian people do not realize what will be involved to protect their rights. People will have to fight in the courts for years. It will be great for the legal profession. Mr. Justice Berger in the United States has pointed out that because their bill of rights was entrenched in a charter the United States judicial system today is an absolute jungle. Lawyers are getting smarter and smarter all the time and are finding more and more loopholes in the law. It goes on and on and on, and lawyers are making hundreds of thousands of dollars handling these cases. It does absolutely nothing at all for the person on the street. I shail now read the example which Senator Cook gave in the Senate of February 24. It just goes to show how involved and complicated it is when these things get into the courts. He said:

The last time there was a case before the Supreme Court of Canada dealing with human rights under the Constitution was in the year 1928. At that time the Supreme Court of Canada was asked to decide the meaning of the word “persons” in section 24 of the British North America Act, and whether “persons” includes women. The court ruled unanimously, with not one dissenting voice, that “women are not ‘qualified persons’ within the meaning of Section 24 of the BNA Act, 1867, and, therefore, were not eligible for appointment by the Governor General to the Senate of Canada.

Did the court endeavour to reflect public opinion in 1928, and did it look to the future in order to decide this question, or did the judges look to the past to find some legal precedent on which they could hand their hats? Did they look at the state of public opinion in 1928, and did they endeavour to decide what should be the best decision for the future? A reading of the judgment indicates that they searched the past, and Chief Justice Anglin quoted with approval the words of Lord Esher of England, spoken in 1889.

Lord Esher had quoted with approval the words of Mr. Justice Willes, which Mr. Justice Willes had written in 1868, as follows:

I take the first proposition to be that laid down by Willes J., in the case of Chorlton v. Lings. I take it that by neither the common law nor the constitution of this country from the beginning of the common law until now can a woman be entitled to exercise any public functions. Willes J. stated so in that case, and a more learned judge never lived.

Can you imagine an ordinary person going into court, fighting for his rights and having to listen to a legal harangue like that in order to explain his rights. I look after people’s rights every day of the week, as do all members in this chamber, without having to hire lawyers and go to court. I can take a matter up with a cabinet minister, speak on someone’s behalf here or in committee. I do not have to go to court and have a bunch of judges deal with it.

Senator Cook went on to say:

In view of this record, why should we think that the courts will be pioneers in safegarding human rights?

We need to keep the Senate, at least for the time being. As long as we have this group of Liberals and New Democrats, we need some responsible Liberals in the other place to look after our rights. Thank heaven a few more of them are speaking out. Senator Cook went on to say:

Fortunately, the women’s rights case had a happier outcome. The judgment was appealed to the Privy Council in London and the court held:

Of course, that went on for years and years in the courts. […]

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