Document Information
Date: 1981-10-30
By: Government of Canada
Citation: First Ministers’ Conference on the Constitution, Prime Minister’s Briefing Book – Meeting of First Ministers – November 2, 1981 (30 October 1981).
Other formats: Click here to view the original document (PDF).
Note: This document is discussed in an article that has been recently submitted to a peer-review journal.
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CONFIDENTIAL
October 29, 1981
COMMENTS FOR PRIME MINISTER ON CHARTER OF RIGHTS
(Response to Criticisms or Objections by Provinces)
I CHARTER WILL RESTRICT POWERS OF LEGISLATURES
It is true, as the Supreme Court noted, that entrenching rights in the Charter will place limits on the ability of Parliament and the provincial legislatures to enact laws. But, what kinds of laws? Laws which restrict the basic rights and freedoms of Canadians in an unreasonable and unjustified way!
Can it really be argued that this is not a proper fetter to place upon the exercise of governmental powers? Do we want legislators and bureaucrats free to arbitrarily restrict freedom of religion and expression, the right to vote, protection against unreasonable searches or arbitrary detention, the right of Canadians to move freely from one province to another, the right to equality in law without discrimination, the rights of English and French minorities to receive government services and education in their minority language? Because that is basically what arguments against an entrenched Charter come down to—an insistence that provincial legislatures and governments remain totally free to act in whatever manner they see fit in granting or denying the fundamental rights of Canadians.
This position is totally at variance with every public opinion survey of which I am aware. These have consistently indicated that the large majority of Canadians want their basic rights enshrined in a manner which will effectively protect them from the arbitrary will of governments. They are well aware of laws and government actions, past and present, which have discriminated against Canadians due to their race, colour, religion, political beliefs, or language, denied them employment due to their province of residence, or subjected them to arbitrary or unreasonable law enforcement procedures. Our existing system of protecting and respecting basic rights through the ordinary legislative and governmental processes is simply not adequate—in a complex and diverse society as Canada is—to provide the certainty of respect for rights which is essential. All parties in Parliament were in full agreement on the need for constitutional entrenchment of the rights reflected in the Charter.
II JUDGES WILL USURP THE FUNCTION OF LEGISLATORS
The argument that judges rather than legislators will become the arbiters of social and economic policies under an entrenched Charter seems to me to be a gross exaggeration of the role which judges will play in interpreting the Charter.
First, judges even now are required, whether interpreting constitutional or ordinary laws, to apply value judgments of an economic and social nature. This is so, for example, when they determine whether the federal government has properly invoked the peace, order and good government power (as in the Anti-Inflation case) or whether a provincial law has infringed on the federal trade or indirect taxation powers (as in the Potash and CIGOL cases). It is again so when the courts are called upon to apply a law relating to a commercial contract, a child custody case, or that governing undue restraint of competition in the marketplace. The judges will be making the same kinds of value judgments in applying the provisions of the Charter.
Second, the judgments which the courts will make under the Charter will be legal judgments. They will not be asking whether, for example, a particular policy expressed in a law is good or bad, but rather whether it is in conflict with a right or freedom protected in the Charter. This is the ordinary process of interpretation. If they find a conflict, it will simply mean that the legislators must modify the law in question in a way which does not breach the right which is being dealt with. The Charter, after all, reflects norms of our society which are fundamental enough that they must not be breached except by limits that are reasonable and demonstrably justified. Is this too much to ask of our legislators?
Finally, the supremacy of the legislator is always preserved, even under an entrenched Charter, for the amending process is always available where a sufficient number of legislatures believe that the courts have interpreted the Charter in a totally unacceptable manner.
[If the provinces do not have a sufficient degree of faith in the ability and good reason of our courts, we could, of course, place a provision in the Resolution which would enable a legislature, in enacting a particular law, to expressly override specific provisions of the Charter. This would preserve the idea of the supremacy of Parliament, while at the same time ensuring that the fundamental nature of Charter rights is maintained. Any such legislative override should therefore be of a limited duration such as five years, to ensure that it was reviewed by a subsequent legislature to determine if its continuation was warranted. In addition, we would want to consider if any such override clause should not be available in any circumstances with respect to certain categories of rights — such as fundamental freedoms and democratic rights, and perhaps others such as institutional language rights and mobility rights — which form the cornerstones of our democratic union as a single economic and political union. I personally doubt the need for an override clause, but if the provinces are convinced that such a provision is absolutely necessary, I am prepared to consider an amendment to the Charter under the limited conditions which I have outlined above.]
II CHARTER WILL PREVENT PROVINCES FROM PURSUING DISTINCTIVE ECONOMIC, SOCIAL AND CULTURAL POLICIES
Premier Lévesque has argued strenuously, in his brochure “Minute Ottawa!” that the Charter would impinge drastically on the powers of the National Assembly to pursue various economic, social and cultural policies which it believes to be in the best interests of Quebeckers.
In it, he lists a litany of Quebec laws and policies which, he contends, would be imperilled by the Charter.
I will not, at this point, attempt to show in detail why virtually all of his allegations are unfounded on a close reading of the Charter, but let me respond to several of the major points.
First, the document asserts that the mobility rights and equality rights in the Charter would invalidate many Quebec laws which favour Quebec residents over non-residents in the economic and cultural areas.
This is without substantial foundation. There is nothing in the Charter which prevents a province from encouraging the indigenous development of economic and cultural enterprises. All the mobility rights require is that a province not erect unjust barriers to Canadians from outside Quebec participating in the economic and cultural enrichment of Quebec. Would Premier Lévesque prefer a policy where Quebeckers were denied the opportunity to seek work in British Columbia, Alberta, Ontario, Newfoundland, or any other province as they now do? Is his “Quebecker first” policy not simply a manifestation of his Party’s foremost objective of taking Quebec out of the Canadian Federation?
Under the Charter, there is nothing which would, as Premier Levesque asserts, have the James Bay project “invaded” by workers from outside Quebec, permit the agricultural lands of Quebec from being preserved for agricultural purposes, or deny Quebec the right to encourage the development of indigenous cultural and economic enterprises.
Second, “Minute Ottawa!” asserts that the equality rights of the Charter would strike down any provincial law that draws distinctions among persons or groups based on particular characteristics.
Obviously, this is patently incorrect. Both the Canadian and American courts have recognized that every distinction in law drawn between one group or class in society and another is not necessarily discriminatory. Such a distinction is only discriminatory, and therefore offensive to the Charter, where the distinction is arbitrary, capricious or without a rational basis. To accept Quebec’s thesis that any distinction is automatically discriminatory would lead to the absurd result that the Criminal Code is invalid because it is directed only at those who commit crimes!
Third, Mr. Levesque contends that the Charter right, combined with equalization and reduction of regional disparities, is a design by Ottawa to concentrate additional economic powers at the federal level to the detriment of the provinces.
Nothing could be further from the truth. The Charter contains no provision which would enhance federal powers; indeed it reduces them in favour of individual and collective rights. The equalization and regional disparities provision commits the federal government to the longstanding principle of ensuring that federal monies will be provided to “have not” provinces – – a principle of which Quebec has long been one of the major beneficiaries.
In addition, “Minute Ottawa!” conveniently overlooks the fact that Part VII of the Resolution would substantially augment provincial powers over natural resources as well as interprovincial trade and taxation in relation thereto. Thus the beneficiaries on the “powers” issue are the people of Canada and the provinces.
Finally, the Quebec document asserts that the Charter of Rights would seriously undermine the protection of the French language in Quebec provided by Bill 101.
The simple fact is that, apart from minority language education rights, the Charter would have no adverse effects on Bill 101. French would remain the official language of Quebec as the language of administration, work and business. (Obviously, as the Supreme Court ruled in the Blaikie case, both French and English continue, under section 133 of the BNA Act, as equal languages in the laws and courts of Quebec — as in Manitoba.)
Only with respect to minority language education would the Charter require a departure from Bill 101, by ensuring that English speaking or English educated citizens resident in Quebec would be able to send their children to English schools, a tradition that had been respected in Quebec until 1977. If Premier Levesque has proposals to make which would lessen the threat to the French language and culture which he perceives in section 23 of the Charter, I would be willing to consider them. However, I would remind the Premier once again of two points: (1) the Charter for the first time guarantees to francophones outside Quebec the right to have their children educated in French (thus strengthening the “French fact” throughout Canada and lessening the sense of linguistic isolation of Quebec), and (2) the Charter reflects the intent of the Premiers’ agreement on minority language education reached at Montreal in 1978, and avoids the need for reciprocal interprovincial agreements on minority language_ education rights contemplated by Bill 101. Is it not better to have these rights guaranteed in the Constitution rather than left to transient political agreements — none of which have yet been concluded?
IV OTHER CRITICISMS
(1) Freedom of Religion and Denominational Schools
Fears have been expressed that freedom of religion and conscience and non-discrimination based on religion will result in the outlawing of state-supported religious schools.
This is simply not the case. Lest there be any doubt in this regard, section 29 was added to the Charter to ensure that laws providing for denominational schools would not be affected by the Charter rights.
(2) Abortion and Capital Punishment
Concerns have been voiced that the Charter will result in an entrenched right to obtain abortions and a constitutional prohibition against capital punishment.
Neither of these results will flow from the Charter. The right to life in section 7 is not unqualified, and thus Parliament will be left with the responsibility for dealing with these issues as it now does.
(3) Exclusion of Illegally Obtained Evidence
Some provinces (Ontario in particular) have voiced concern that section 24(2) of the Charter, which empowers a court to exclude evidence in a trial where it has been improperly obtained, will result in “criminals” being released on legal technicalities, as in the United States.
This is not the case. The rule in section 24(1) is carefully drawn to require the exclusion of tainted evidence only where, having regard to all the circumstances of the case, admission of evidence would bring the administration of justice into disrepute. Thus, this is no automatic exclusion of evidence rule as pertains in the United States, but rather one where the judge must weigh the fairness and the effectiveness of the administration of justice in reaching a decision on the matter.
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