Document Information

Date: 1981-03-05
By: Canada
Citation: Memorandum, Comments Regarding Certain Comments in Senator Thompson’s Speech, Charter of Rights and Freedoms (5 March 1981) in Tab T, Briefing Book: Constitutional Debate: The Government’s Motion respecting the Constitution, February, 1981 (Revised: March 13, 1981).
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Comments regarding certain statements in Senator Thompson’s speech

(March 2, 1981 Senate Hansard No. 96)

Charter of Rights and Freedoms

1) “Certainly, all the provinces understand that this charter’s purpose is to limit legislative jurisdiction by rendering inoperative provincial laws, which are, in the judgment of the court, inconsistent with the charter. The fact that it will also limit federal jurisdiction does not alter that fact of infringing on provincial jurisdiction.”

Comments

• The rights included in the Charter are fundamental, a minimum guarantee, and although it may place certain limitations on the powers of both federal and provincial legislatures and government, these limitations would exist only to protect certain fundamental rights and freedoms of the individual that are recognized as essential in every advanced democracy.
• The rights and freedoms included in the Charter are a statement of the very foundation of our society and certainly require a clear expression in our Constitution.
• At present, rights and freedoms vary from place to place in Canada. If there is one overriding element of unity in a federal state it should be the greatest possible measure of commonality in the recognition and protection of basic rights so that a person moving from one place to another will be assured equal treatment and protection wherever he may be.
• In our federal system most fundamental rights and freedoms fall partly within federal jurisdiction and partly within provincial jurisdiction. Consequently, it is not very meaningful to tell citizens that, for example, their freedom of speech is assured against arbitrary limits being imposed by Parliament, but that there is no similar guarantee insofar as provincial laws are concerned. Or, that an accused has a number of constitutionally guaranteed rights when he is charged under the Criminal Code, but that there is no guarantee to these same rights if the charge fs under a provincial Highway Traffic Act.

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• We must be aware of Canada’s obligations under international law in this regard. Canada in 1976, with the agreement of the provinces: became a party to the U.N. International Covenant on Civil and Political Rights.
• Our courts do not readily override the clearly expressed will of the legislators in matters of social policy. In addition, if from time to time, the decisions of the courts are found to be unacceptable to the electorate, then these decisions can be changed by constitutional amendment. Without entrenchment, rights can be changed by ordinary legislative enactment and our fundamental rights are too important to be treated in this manner.
• A Charter of Rights is not a radical concept. All provinces already have Human Rights Acts or Human Rights Codes and provincial laws are subject to the provincial human rights legislation.
• The Charter does not have a centralizing effect: it does not authorize any shift of power from the provincial level of government to the federal level of government. Moreover, Section 30 of the Charter assures that nothing in the Charter extends the legislative powers of any body.

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2) “Professor Browne, whom Senator Cook referred to, pointed out that the rights to “liberty” and enjoyment of property” which were applied by the American Supreme Court through its interpretation of the “due process clause” disallowed laws imposing maximum hours and minimum wage standards, prohibiting discrimination against trade unionists.”

“Frankly, I wish I felt the excitement that others profess to feel over the transfer of protecting rights to the courts from the sovereignty of Parliament and the legislatures. I believe that the rationale, the explanation, for that transfer needs much less emotional rhetoric and more deliberation by all of us.”

Comments

The concern, that entrenchment of rights would make the judiciary rather than legislators the final arbiters of what basic rights mean, seems based upon particular perceptions of what has happened in the United States under its Bill of Rights and the assumption that the same thing will occur in Canada. In the first place, it is easy for detractors to point to a United States Supreme Court decision of the past that held property rights to mean that slavery was acceptable or to decisions of the 1930’s which thwarted some social legislation of the “New Deal”, and ask “Do we want out courts making these kinds of judgments?” What is overlooked are other significant judgments of that same Court which have-· advanced the cause of civil liberties immensely and well before the

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legislators were ready to move. One has only to refer to the landmark decision of 1954 where the Court held that segregated schools violated the principle of equal protection of the law, more than ten years before Congress enacted laws designed to counter racial discrimination. Was this a bad decision? Should the courts not have had the power to make this judgment to protect minority rights?

Beyond this point,                                                                                                                                                                                one also has to note that under the congressional system of government in the United States the courts have been placed in a more direct adversarial role with the legislatures than is the case under our parliamentary system. Consequently, to the extent that fears of “judiciary tyranny” have any real grounds, the fact is in Canada that the courts do not readily override the clearly expressed will of the legislators in matters. of social policy — indeed, our courts have frequently stated that the wisdom of the legislation is not for them to decide, even in constitutional cases.

This principle has also been recognized by the United States Supreme Court. In a passage from the U.S. Court’s judgment in Railway Employees’ Dept. v. Hanson in 1956 dealing with labour laws and freedom of association: “Congress, acting within its constitutional powers, has the final say on policy issues. If it acts unwisely, the electorate can make a change. The task of the judiciary ends once it appears that the legislative measure adopted is relevant or appropriate to the constitutional power which Congress exercises.”

At the same time, we must recognize that in entrenching basic rights what we are seeking is a means to ensure that an objective body (the courts) can decide when an imprudent majority or bureaucrat has acted in a manner which infringes the rights of an individual or a minority. If from time to time these decisions are found to be so unacceptable to the electorate, then they can be changed by constitutional amendment. Without entrenchment, rights can be changed by ordinary legislative enactment and our fundamental rights are too important to be treated in this manner.

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The argument that entrenching rights is foreign to our parliamentary system perhaps had some validity when it was being expounded by Dicey a century ago. In that era the principle of supremacy of Parliament had greater significance when Parliament was in fact making all the laws. Today, much of our law is not made by Parliament but by Ministers and officials through regulations, orders, rules, directives and the like. These do not receive effective public debate and consequently there is serious danger that laws will be made that infringe on basic rights without the public even knowing until some regulation is applied to an individual. In this context, it is difficult to contend that entrenchment runs counter to the concept of supremacy of Parliament. It would be more accurate to suggest that that entrenchment would place restraints on the “supremacy of government“. Indeed, viewed from this perspective, entrenching rights would enhance the supremacy of Parliament since legislators would have to be more conscious of specifying the conditions under which delegated powers were granted and administered — to ensure that they accorded with the rights guaranteed by the constitution.

“What about the treatment of blacks and, indeed of their own Japanese Americans, to mention some who thought that their rights were secure and guaranteed by entrenchment?”

Comments

Even the architects of organized discrimination recognize the difficulties of a constitutionally entrenched Bill of Rights in the United States. When the American and Canadian governments are conspiring to deport—more correctly to send to Japan, because two-thirds were born here—and disperse Americans and Canadians of Japanese extraction, the then United States Under Secretary of State Edward Stettinius expressed his concern over some impediment in their grand design.

I quote:

In view of a good number of Japanese of American nationality serving in our army whom we could not, in justice, deport, after they had fought for us, and citizenship laws differing in certain important respects from those of Canada.