Document Information

Date: 1981-01-21
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 42 (21 January 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 42

Wednesday, January 21, 1981

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution of Canada

RESPECTING:

The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980

APPEARING:

The Honourable Robert P. Kaplan,
Acting Minister of Justice

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980-81

SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Asselin
Austin
Goldenberg
Lucier
Petten
Roblin
Rousseau
Tremblay
Wood—10

Representing the House of Commons:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Crombie
Epp
Fraser
Gimaiel
Hawkes
Irwin
Lapierre
Mackasey
McGrath
Nystrom
Ogle—15

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons:

On Wednesday, January 21, 1981:

Mr. Hawkes replaced Mr. Munro (Esquimalt-Saanich);
Mr. Ogle replaced Mr. Robinson (Burnaby).

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MINUTES OF PROCEEDINGS

WEDNESDAY, JANUARY 21, 1981
(75)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 3:50 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Goldenberg, Hays, Lucier, Petten, Roblin, Rousseau, Tremblay and Wood.

Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Fraser, Gimaiel, Hawkes, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Ogle and Robinson (Burnaby). Other Member present: Mr. Allmand.

In attendance: From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Appearing: The Honourable Robert P. Kaplan, Acting Minister of Justice.

Witnesses: From the Department of Justice: Mr. Roger Tassé, Q.C., Deputy Minister and Dr. B. L. Strayer, Q.C., Assistant Deputy Minister, Public Law.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings. Thursday, November 6, 1980, Issue No. 1.)

The Committee resumed consideration of Clause I of the Proposed Constitution Act.

By unanimous consent, Mr. Irwin moved, —That Clause 1 of the proposed Constitution Act, 1980 be amended by striking out lines 4 to 6 on page 3 and substituting the following:

“reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

After debate, the question being put on the amendment, it was agreed to on the following show of hands: YEAS: 21; NAYS: 2.

By unanimous consent, Mr. Epp moved, —That Clause 1 of the proposed Constitution Act, 1980 be amended by striking out line 1 on page 3 and substituting the following:

“1. Affirming that

(a) the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free individuals and free institutions, and

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(b) individuals and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law,

the Canadian Charter of Rights and”

After debate at 6:05 o’clock p.m., the Committee adjourned to the call of the Chair.

Joint Clerks of the Committee

[Page 5]

EVIDENCE

(Recorded by Electronic Apparatus)
Wednesday, January 21, 1981

[Text]

The Joint Chairman (Mr. Joyal): Order, please.

Yesterday, as honourable members will recall, we agreed that we would invite at the opening of our session today, the respresentative of the NDP party, Mr. Lorne Nystrom, to introduce the amendments, if any, the New Democratic Party would like to have discussed at this table.

We have provided the Official Opposition the same opportunity last night and all honourable members are agreeable to invite the New Democratic Party to do the same.

Mr. Nystrom.

Mr. Nystrom: Mr. Chairman, thank you very much for the opportunity to say a few words at this time.

I indicated to the Committee yesterday or the day before on a point of order that we had not yet made a decision to do as the Conservatives did, that is to present our amendments in terms of a total package, which was one option.

The other option was to present them in groups of one or two, or three or four at a time.

Now, we have decided in caucus that, instead of presenting them as a package, we will do the latter and present them individually and try to give members of the Committee enough time to study our amendments and to have sufficient time before the vote, so that honourable members would know the arguments that we are about to make.

I would suggest, Mr. Chairman, that we do not spend a great deal of time on a few amendments right now that we intend to make, but I would, if I may, like to turn the microphone over to Mr. Robinson.

As you know, Mr. Chairman, in our party we have been involving a number of people in the constitutional work, and a whole series of people have been through here, and we have delegated certain responsibilities for certain sections to certain people, and we have delegated to Mr. Robinson the responsibility of dealing with amendments on the Charter of Rights, the legal rights section.

He will make a very short statement on some of our amendments this afternoon. Then, in the day or week or two to come, we will be sending the Committee, with as much notice as possible, the rest of the amendments and perhaps making a short statement at that time.

The Joint Chairman (Mr. Joyal): Mr. Robinson.

Mr. Robinson: Thank you very much, Mr. Chairman.

I would also like to thank the members of the Committee for their indulgence in this procedure.

I would also like to indicate that we certainly intend to table, hopefully later today, if not later today, then you will receive in your offices first thing tomorrow morning, the actual text of our proposed amendments with respect to the Charter of Rights, at least the first 15 clauses.

As I say, I apologize for the fact that there is not written formulation of them as yet. There will be within a very few

[Page 6]

minutes a written formulation, both in French and English of our proposal with respect to Clause 1, which, as I understand it, is the clause we will be proceeding on this afternoon.

Very briefly, if I may, in order to give Committee members some notice of the areas within which we intend to move, firstly, with respect to Clause 1, as I indicated, we will be proposing a number of changes there.

Now, I do not propose to touch upon those changes now, because they will be circulated in very short order.

With respect to Clause 2 and certain other clauses, we believe that the use of the word “everyone” should be replaced by the words “every person” for greater clarity.

Also, with respect to Clause 2, that the freedom of the press and other media should be listed as a separate freedom and not included in the over-all freedom of expression.

There will also be a fairly minor amendment to remove the word “peaceful” from “peaceful assembly” and restore the wording to the original Canadian Bill of Rights formulation.

Naturally, I will elaborate upon these amendments at the time they are proposed. This is simply to give Committee members some notice of the areas we will be examining.

With respect to Clause 3, it is our view that that clause is too narrowly defined and we would like to make it very clear that the right to vote and to be a candidate and to hold office can only be abrogated in the most extreme circumstances, and we will be proposing a wording which imposes a somewhat more rigid test, the test of demonstrable justifiability, and also making clear that there cannot be distinction on the grounds for example, of race, sex, political belief in granting the right to vote.

On Clause 4 of the proposed charter, we are concerned about the use of the word “apprehended”, and we will be suggesting amendment to the word “imminent” as was proposed by the Bar Association and others; and we would be suggesting that there should be some provision, Mr. Chairman, whereby the decision to extend the House of Commons or a provincial legislative assembly, is not an indefinite extension, but that there is a certain obligation upon the government to come back at regular intervals to ensure that that extension has the support of the elected members in that particular house.

With respect to Clause 6, the amendment I would wish to flag at this point is the following: That Canadian citizenship, once legally acquired shall be inalienable. The concept of Canadian citizenship is fundamental in a number of aspects of the proposed Charter, and in our view, that should be inalienable once it has been legally acquired.

On Clause 7, dealing with the question of fundamental justice, we will be suggesting that this concept be expanded, Mr. Chairman, to include the principles of due process of law, so that any jurisprudence which may exist on that subject may be preserved and that “fundamental justice” would be a broader concept.

We are also proposing two new subclauses to Clause 7—the right to a fair hearing in accordance with the principles of

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fundamental justice for the determination of one’s rights or obligations.

This is contained in the Canadian Bill of Rights, and certainly with the exploration of administrative and quasi-judicial tribunals, I believe this is an important addition; and also, the right to protection against arbitrary or unreasonable interference with privacy will be proposed as a new subclause of Clause 7.

With respect to Clause 8, there will be a minor clarification to ensure that we are dealing with the right to protection from unreasonable search or seizure of both person and property.

With respect to Clause 10, there are two additions, Mr. Chairman. These are rights following arrest—two proposed additions; one with respect to the right of persons who have not sufficient means to pay for counsel, to be provided with counsel where the interests of justice so require.

This is very much in keeping with our commitment under the International Covenant on Civil and Political Rights.

Secondly, there is the right to protection from self-incrimination from the moment of arrest and not merely from the moment of charge-from the moment of arrest; and the right to be informed of that right.

Mr. Chairman, there are four other brief clauses, if I may. With respect to Clause 11, we will be proposing a number of fairly technical amendments and some of them of substance; for example, in Clause 11(c), no one should be compelled to confess guilt; with respect to Clause 11 (f) on the right to trial by jury-a very fundamental and important right—we will be suggesting that that should be accorded to an accused who is liable to imprisonment of two years or more and not five years or more.

We share the concerns expressed by some members of the Jewish community with respect to making very certain that our objectives in dealing with war criminals are realized and we will be proposing some technical amendments in those areas.

with respect to Clause 11 (h) we want the principle of double jeopardy-the protection from double jeopardy recognized in a more effective way than is presently recognized in that formulation.

Then two additional protections, Mr. Chairman: we would want the right to be confronted by witnesses against a person who is accused of a criminal offence, and the right to have compulsory process for obtaining witnesses in favour of the accused.

These are, again, rights which are presently taken for granted in Canadian society and which are confirmed by the Covenant.

With respect to Clause 12, Mr. Chairman we would change the words “cruel and unusual” because of the interpretation of those words which could lead to the unfortunate conclusion

[Page 8]

that punishment, even though cruel and inhuman and degrading, could not be struck down mainly because it was ongoing or it was not unusual in Canadian society. We will be proposing that those words be changed and also that the words of the Covenant be substituted, that is to say, “cruel, inhuman or degrading treatment or punishment”.

With respect to Clause 14, we will be suggesting that the interpretation of this particular clause will be more effective if the wording of Bill C-60 were to be used. There is a somewhat broader application of the fundamental right to an interpreter. We certainly also support the extension of this to those persons who are subject to hearing impairment.

Finally, Mr. Chairman, at this point, with respect to Clause 15, the proposed equality rights, I think it might be in order if I were to read our proposal on this so that members would be well aware of what we are proposing. As I say, you will be receiving a written copy of this, and with that, Mr. Chairman, I will conclude.

We proposed a new Clause 15 with three subclauses as follows:

15(a) Every person is equal in, before, and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services without unreasonable distinction on grounds, including race, national or ethnic origin, colour, religion, sex, age, marital status, sexual orientation, political belief, physical or mental disability or lack of means.

And there will be a Clause 15(b) to the effect that sex, race, colour, religion, national or ethnic origin shall never constitute a reasonable distinction for the purposes of Clause 15(a); and finally Clause 15(c) the affirmative action subsection, that Clause 15(a) does not preclude any law, program or activity which has as its object the amelioration of conditions of disadvantaged groups, including those who are disadvantaged because of grounds specified therein.

Mr. Chairman, as I say, I apologize for not having these in writing, and they will be forwarded very shortly in both French and English and certainly at the time the amendments are moved there will be elaboration on the objectives that we attempt to achieve on these amendments.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Mr. Nystrom.

Mr. Nystrom: Just to complete the statement, Mr. Chairman, as I said earlier we will be announcing the amendments we intend to move in a series of groups. We have decided in our caucus to move amendments in seven major areas. We have a series of amendments, as Mr. Robinson has pointed out, in terms of the Charter, and he has referred to them, and we will have them as soon as possible in both languages.

[Page 9]

I would like to take about four minutes to outline where the other amendments will come.

Secondly, there will be amendments in terms of language rights, minority language rights in this country which are so important; thirdly, we will be having some amendments on native rights, rights for the aboriginal people of our country; we had many of them before the Committee as witnesses.

The fourth area where we have amendments prepared and which we are going to fight hard for, is the area of equalization; but on that I would like to say that the government has moved an amendment that is almost identically word for word with the one we wanted to move.

We accept it, and we think that amendment is excellent and we support the government’s amendment in the area of equalization.

The fifth area out of the seven is the area of constitutional conferences. We will be moving or proposing an amendment in terms of broadening the participation process in terms of ironing out in this country a new constitution.

The sixth area is the whole area of the referendum. We will be proposing to this Committee some amendments in terms of the referendum. A number of us have already spoken on that and have questioned witnesses in that area.

The seventh and final area which is very important is, of course, the area of resources. We will be proposing an amendment or some amendments, in the area of resources which we think are very important for the country.

Mr. Robinson: Mr. Chairman, if I may, I would like to supplement Mr. Nystrom’s remarks.

The Joint Chairman (Mr. Joyal): Yes.

Mr. Robinson: I should, perhaps, have mentioned this initially. There will be two proposed additions, to which I did not make reference and I will give the Committee notice now.

On Clause 2(e) there will be a new Clause 2(e) under our reformulation of Clause 2. We would add to the freedom of association the words “including the freedom to organize and bargain collectively”. Those words are, of course, contained in the International Covenant on Civil and Political Rights, and this is a right which has been of fundamental significance in Canadian society for many years.

Secondly, we would propose a new Clause 5 and renumber Clause 5 as Clause 4(3)-the right to access to information:

Every person has the right to have reasonable access to information in the possession of federal, provincial or municipal departments, institutions and agencies.

Those are two additional elements which we will be proposing, and the wording will be forthcoming on those.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, just before we get to the questions—I understand that will be the format this afternoon—could I have some clarification from you before going into the

[Page 10]

question on a number of things. I will put them individually so that I could probably get a response.

First of all, our party had put forward the proposition that when we get to the clause-by-clause, that there might be a need to call Ministers before the Committee for technical explanations in terms of policies and legislation passed at the present time under which departments are functioning, and which might be affected by that particular clause that we are studying at any given time.

We had said—and I believe Senator Austin will bear this out—that the list I had was very restrictive, and I was not intending to use that kind of an effort in any way to block the work of the Committee, and I think Senator Austin has generally conceded that that was put forward in that spirit.

I will just give you one: the matter of age. I think all of us would have some problem with the aging process. We do have some difficulties in terms of what “age” might mean for the purposes of administration in government departments now.

Could I have an explanation either from the Chair or from a member representing the government as to what their position is on that request?

The Joint Chairman (Mr. Joyal): I would like the honourable Senator Austin on that very specific question, because I do not believe the Chair is in any way a spokesman for the government on that very issue, which, I think, has to be discussed among the party representatives.

I would now like to invite the honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

It is the view of the government—and I have communicated this to Mr. Epp yesterday in a private conversation, but I would like to place it on record, that it would be an unusual procedure that the government’s representative here is the Minister of Justice, or the Acting Minister of Justice, and if he is asked questions, about which he has not informed himself, that he will do his very best to inform himself and to help the Committee and will be the Minister speaking on behalf of the government.

The Joint Chairman (Mr. Joyal): Thank you, Senator Austin.

The Honourable Jake Epp.

Mr. Epp: Mr. Chairman, so I take it, then, that the Minister of Justice or the Acting Minister of Justice, or whoever else the government places in that position before this Committee, will be responsible for all answers relative to the government and also the administrative procedures which might be affecting any of the departments of government?

The Joint Chairman (Mr. Joyal): The honourable Senator Austin.

Senator Austin: The answer to that is yes, Mr. Chairman. The Minister of Justice is the responsible Minister in this Committee, and the will do his best to inform himself and the Committee when ever there are questions put to him regarding the impact of the joint resolution on Canadian society.

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The Joint Chairman (Mr. Joyal): The honourable James McGrath on a supplementary question.

Mr. McGrath: Mr. Chairman, briefly, we know of at least one department of government outside of the Department of Justice—and we understand that there are at least two others which have sought separate legal advice as to the implications of some provisions of the Charter on their department; for example, the implications of mobility rights on Indian and Northern Affairs, north of the 60th and so on.

What you are saying to us now is that we will not be able to question the Minister of Indian and Northern Affairs. We accept that.

But, will we have access to the opinion that is sought by the Minister of Northern and Indian Affairs regarding the implications of the bill on his department?

The Joint Chairman (Mr. Joyal): I do not want to interrupt or to prevent the honourable Senator from answering the question; but maybe the Acting Minister of Justice could answer the question. With all due respect to the honourable Senator, the honourable, the Acting Minister of Justice.

Hon. Robert P. Kaplan (Solicitor General and Acting Minister of Justice): Mr. Chairman, I will undertake to answer all questions for the government.

Obviously if a matter arises about a legal opinion which is in existence of which the honourable member knows, but about which I have no knowledge, I might want to have sometime to obtain that opinion and to be briefed about it.

But I think it would be in the best interests of the Committee, considering the schedule of the Ministers, and the fact that there are a very few days left for me to give you that undertaking and to be responsible to provide information on behalf of the government to the Committee.

I will do my best, and if I cannot do it directly in reply, perhaps we could pass a clause and we could come back to it as soon as I am informed.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp, I think you had another question, I invite you to pursue that.

Mr. Epp: Thank you, Mr. Chairman.

Another matter, and I will leave that in the hands of the Chair because we have given a commitment to start with clause-by-clause today and I stay with that commitment.

Yu will recall at yesterday’s hearing, just prior to adjournment at 6 o’clock, there was a commitment, I believe, given by the Chair that possibly Mr. Hawkes might finish his questioning, and I will leave that in the hands of the Chair. I simply make mention of that without in any way trying to deprecate from the commitment that we have made and we stay by that commitment.

Mr. Chairman, just the last point, and I appreciate that the New Democratic Party has put forward before us at least the intentions as to the direction that they are going, and I take it that you will allow for questions and after you have recognized the government questioners we would also like to ask a few

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questions, at least in terms of principles they have enunciated, if not on the specifics that at this moment are not before us.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp.

Before we open the questioning I would seek the advice of honourable members. We could either open our information session with the representatives of the NDP and reserve of course the right of Mr. Hawkes, and the Chair is fully in agreement that Mr. Hawkes should have an opportunity to complete his questioning, I think that he had another five minutes or so, to complete his questioning of the Minister and we could then start our work on a clause-by-clause basis or go on with Mr. Hawkes and then come back to the New Democratic Party proposals that we had under consideration just a moment ago.

My proposal or suggestion, and very humbly, to the honourable members would be to continue with the New Democratic party and complete the information session and I am quite sure that in the course of exchange Mr. Hawkes might have additional information to ask of the Minister and he might even profit from that exchange with the representatives of the New Democratic Party, so in so doing I would invite the honourable members to address, if they have questions, the representative of the New Democratic Party on the statment that we just heard from Mr. Nystrom and Mr. Robinson.

So I am open to receive names from honourable members.

Honourable Senator Austin.

Senator Austin: Mr. Chairman, I am speaking for myself and not for members on this side, but I would suggest that as we have not received a document from the NDP we would want to wait until we had a document before us before we pursued any questions, and in that context I would suggest further that we proceed with clause-by-clause and discuss the New Democratic Party amendments in the way in which they wish them submitted, that is clause-by-clause, and they can explain their amendments, as Mr. Robinson mentioned, when we come to deal with them in the context of each clause.

The Joint Chairman (Mr. Joyal): That seems to be a fair suggestion.

Mr. Nystrom and Senator Asselin.

Mr. Nystrom: I thought I made it fairly clear, Mr. Chairman, the way I prefer to go is the way that Senator Austin has suggested. I think that we save time before the Committee that way, that we will discuss in detail our amendments clause-by-clause.

They are in the process now of being translated and being put into technical language, and as soon as that is done we will make them available to the Committee, and we will make all the other amendments I referred to in the other five areas available as soon as we can and we will give people notice as soon as possible.

If there are any questions in a general sense perhaps once Committee members receive the printed material they can ask them of us tomorrow, but to do so briefly because that way we can expedite the work of Committee.

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The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

Honourable Senator Asselin.

[Translation]

Senator Asselin: Mr. Chairman, I do not think it is fair that the members of the NDP be allowed to table their amendments, one after the other, during the clause-by-clause study.

Yesterday our party tabled its own amendments, precisely to allow the committee members to study them in advance so that a decision may be made immediately when they are officially moved during the clause-by-clause study. At that time, we should also be able to make immediate decisions about the NDP amendments.

I think this party should be fair towards the other members of the committee and the chairman should at least request its members to table those amendments as soon as possible, perhaps tomorrow, so that we have the opportunity to study them during the weekend. It would only be fair to the other members of the committee that the NDP be asked to co-operate with the committee.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Asselin.

Could Mr. Nystrom give us a better indication of when he intends to table those amendments, especially those dealing with clauses 1 to 15?

A while ago, Mr. Robinson told us that those amendments were kind of a global package and that we could examine them as such.

[Text]

Maybe Mr. Nystrom could give us some indication on that so that the honourable members, as was said very precisely by Senator Asselin, would be in a position to have a better input into our discussions.

Mr. Nystrom.

Mr. Nystrom: I sympathize very much with what Senator Asselin has just said but I want to remind you, Mr. Chairman, we had no agreement that we all had to present our amendments in terms of a package. That is the route that was pursued by the Progressive Conservative party and I see Mr. Epp nodding his head and I respect that, and I respect the way they decided to do it.

We decided on a different course. We decided to present our amendment in a series of six different packages, and to do so with as much notice as possible to members of this Committee and I intend to keep that commitment and make sure you have as much notice as possible and we will do it as soon as we can, but we will do it in a series of six different packages.

The Joint Chairman (Mr. Joyal): Honourable James McGrath on a supplementary on the same question.

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Mr. McGrath: Mr. Chairman, I am not questioning the right of my friend Mr. Nystrom to proceed in whatever way they deem most appropriate. All I am suggesting to you and to my colleagues on the Committee is that we are at a crucial stage of our proceedings now. We have had a good run at the Minister and we have had a good run at the witnesses, we are now getting down to the clause-by-clause. Is Mr. Nystrom suggesting that he is going to have six major interventions on his six packages, because if so, it will be some considerable time before we get to the clause-by-clause.

I would just like to clarify that.

The Joint Chairman (Mr. Joyal): I will certainly invite Mr. Nystrom to respond, but it is not the way I have understood his presentation this afternoon, but I think it will be preferable to have it from Mr. Nystrom himself.

Mr. Nystrom.

Mr. Nystrom: No, that is not my feeling at all. We want to deal like we usually deal, clause-by-clause, and if we have amendments we will explain them at that particular time and argue for those amendments at that particular time.

We decided to adopt that course rather than going in the direction that the Conservative Party went and we have now said that we have amendments to the Charter of Rights and Freedoms that takes us up to Clause 15, we have several amendments there and I suggest we get on to Clause I now and move our amendments and do the appropriate questioning at that time.

Mr. McGrath: Well, I have one further intervention on the same question, Mr. Chairman, and I do not purport to speak for my colleagues but I can certainly express my own view and that is, I believe that it is regrettable that we do not know what direction the New Democratic Party is heading in because it obviously would influence how we proceed. We know how we want to proceed, the government knows how it wants to proceed, we are both up in the air as to how our friends in the New Democratic Party intend to proceed and that could slow down our proceedings and I think it is rather unfortunate, for whatever good reasons, that we are not in a position to know just exactly what are the nature and substance of the New Democratic Party amendments, and I just make that as a comment.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable James McGrath.

Honourable Senator Austin.

Senator Austin: Mr. Chairman, I want to make clear through you to the Committee that we have no objection to the New Democratic party proceeding as they are doing; as Mr. Nystrom has said, and I believe Mr. Epp agrees, there was no specific arrangement and each party is choosing to proceed as it wishes.

I will say, however, that if we come in clause-by-clause to a point where the New Democratic Party is not ready with its amendments, that will be sad for them because we will proceed

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without waiting for them to produce an amendment. I am sure that they appreciate that.

In the circumstances, Mr. Chairman, I would like to suggest through you to the Committee that we hear Mr. Hawkes final five minutes of questioning and then we proceed to Clause 1 and Mr. Irwin will put Clause I on behalf of this side.

[Translation]

Senator Asselin: Before proceeding, Mr. Chairman, could we have some indication from Mr. Nystrom as to when he would table his six series of amendments? Is he going to surprise us every day and tale each amendment without giving us any opportunity to study it beforehand?

I think my request is quite reasonable.

[Text]

The Joint Chairman (Mr. Joyal): Mr. Nystrom, will you reply or do you think you gave the answer that you have already explained to the honourable members of the Committee?

Mr. Nystrom: I think I have and I give my word that we will present them with adequate time for the Committee members to study them in advance.

Senator Asselin: When?

Mr. Nystrom: And we will do it in our own way according to our own tactics and our own strategy, and we are here to seriously study this thing section by section and persuade the government to make changes which will build the national consensus and we think we are doing it the right way and that is the way we will proceed.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

[Translation]

Senator Asselin: I understand that Mr. Mackasey would approve Mr. Nystrom’s statement, given the fact that, in this matter, the NDP is the natural ally of the Liberal Party.

[Text]

Mr. Mackasey: Mr. Chairman, I am sorry, I did not open my mouth but Senator Asselin can read my mind. I do approve of the procedure of Mr. Nystrom, I think it is logical and quite consistent and it will lead to a very productive session.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.

I would like to invite Mr. Hawkes to question the honourable Acting Minister of Justice.

Mr. Hawkes: Mr. Chairman, we seem to have lost the Acting Minister of Justice briefly. Should I wait until he returns?

The Joint Chairman (Mr. Joyal): Yes, I think it is better to wait, of course.

I would like to invite Mr. Nystrom to comment.

Mr. Nystrom: Perhaps, Mr. Chairman, Senator Asselin is regretting having played all their cards in one shot at the

[Page 16]

beginning of the game. I think if you are a good card player you hold some cards to your chest until the appropriate time to play them.

[Translation]

Senator Asselin: I also know that by acting this way, the NDP has shown that it was afraid to play its cards in advance. As far as we are concerned, we played openly. I hope that you will then avoid making serious mistakes.

[Text]

The Joint Chairman (Mr. Joyal): I would like to invite now the honourable Acting Minister of Justice to take his seat so that I could invite Mr. Hawkes to wrap up with his questioning to the Minister.

Mr. Hawkes: Thank you, Mr. Chairman.

The Minister will recall that at 6 o’clock yesterday, we were into a discussion of Clause 15(3) under the Official Languages of Canada and that the clause as originally put forward in a document available in the post offices around the country, this clause read:

Nothing in this Charter limits the authority of Parliament or a legislature to extend the status or the use of English and French or either of these languages.

Yesterday I was trying to find out whether or not the drafting of the proposed amendment as it now sits was consistent with the policy intent of the government, and we got into the first part of it but the substantive change from the first draft which was available to the amendments proposed by the Minister drops out the following words:

or either of those languages

So that we now have a clause that deals just with advancing the equality and would seem to have dropped that provision which would have allowed governments, provincial governments or the federal government, to advance the status or use of either of the two languages and I am wondering if that represents a policy shift from when we originally saw the Charter to the Minister of Justice’s presentation a week or so ago?

Mr. Kaplan: I think the explanation is very simple. The amendment was introduced to exclude the possibility of a government seeking to advance one language at the expense of the other, to advance one and justify reducing the other by the original formulation contained in the original Clause 16(2)

The way it has been reworded in Clause 16(3) it is very clear that either language can be moved forward toward equality with the other, but not that one can be moved forward at the expense of the other.

Mr. Hawkes: In the legal drafting advice which you have, in terms of this change, if I could put it in practical terms, but I believe in the province of Quebec, Bill 101, for instance, asserts that signs on store fronts shall be henceforth in French. Is it your legal advice that with this rewording, that in fact a piece of legislation of that kind in the future would be illegal, that the courts would rule that putting up signs in both languages would be legal, but that if you take away the English sign and replace it with the French sign, that that in effect would be a piece of legislation that would be found to have no force and effect?

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Is that what the drafters are attempting to do?

Mr. Kaplan: Well, I think you are going beyond the actual wording of the statute. The statute addresses itself to legislation which seeks to advance equality and confirms that nothing in the Charter limits the authority to do that.

The legislation that you have referred to, which is restrictive legislation, is not addressed by Clause 16(3).

You have referred to a problem, we could talk about that problem, but the narrow answer to your question is that Clause 16(3) does not deal with that problem.

Mr. Hawkes: So if we went through the way it is worded now, and I am still trying to get at the policy intent, but if a Parliament or provincial legislature at some future point took the minority language in any province and passed a personnel policy or a policy affecting churches or the freedom of the press, but if that policy was couched in terms that could clearly be defended as advancing that minority language to somewhere more equal, then no other parts of this Charter would apply to that?

In other words, the government would have that right to make those kinds of legislative decisions in situations of inequality to advance equality in any area of our life? Is that the policy intent of the government?

Mr. Kaplan: I want to ask Mr. Tassé to explain the Thorsen case. I think it undoubtedly is the situation that gave rise to the language here in this section and perhaps he could explain it.

Mr. Roger Tassé Q.C. (Deputy Minister, Department of Justice): Well, some members may, Mr. Chairman, recall that the authority of Parliament to pass the Official Languages Act had been challenged in court and the argument that had been made was, if I recall correctly, that in effect Parliament did not have the authority, that Section 133 of the BNA Act dealt with the language rights so far as the federal institutions were concerned, and that Parliament did not have the authorty to go further and add to the status or extend the status of official languages in Canada.

The court said no, that is an authority that Parliament has, and in effect we just want here to confirm that understanding that Parliament and the legislatures authority to add to the status or to deal with languages, English and French, is not affected by the Charter. So this does not deal with the kind of situation that Mr. Hawkes is referring to. Mr. Kaplan: You see, Mr. Thorson’s argument, again as I understand it, was that since Section 133 established a status for the English language in the Province of Quebec, Parliament could do nothing more to enhance that status. The argument was rejected by the Supreme Court of Canada I and this language really puts into legislation, puts into our Charter the principle that the Supreme Court of Canada established in that case.

Mr. Hawkes: Does that have the effect in consitutional terms, then, of empowering the Parliament of Canada, the federal government, to operate on that principle even if it is in an area of provincal jurisdiction, for instance?

[Page 18]

Mr. Kaplan: Well, the formulation of the question forces me to indicate that this section does not authorize any legislation to be passed or any programs to be introduced. It says “nothing limits”, so that the foundation of legislative authority has to be sought elsewhere, outside Clause 16(3), and what this provision simply provides is that the Charter itself should not, with all of the attention that it does pay to language issues, should not be interpreted so as to prevent, exactly as it says, the advance toward equality of either of the official languages of our country.

I could refer as well to Clause 28 which is relevant, which says that nothing in this Charter extends the legislative powers of any body or authority, so that it is a confirmation of the finding that is already part of our law, that was settled in that Supreme Court of Canada case and elsewhere.

Mr. Hawkes: And the clause, if I could get clarification again, but if there is a program or piece of legislation passed which perpetuates or intensifies the inequality of language, then it is your legal opinion that this clause could not be used in a court of law, the Supreme Court of Canada, to find that piece of legislation as having no force and effect? In other words, it would have no relevance to a case of that kind?

Mr. Kaplan: That is right. Legislation like that would have to be challenged on some other basis, if it is challenged at all.

The Joint Chairman (Mr. Joyal): Does that complete your questions, Mr. Hawkes?

Mr. Hawkes: When we get to the clause there may be others as I look for other precedents, but the policy in terms of the government I think the Minister has made clear and that is what I was after.

The Joint Chairman (Mr. Joyal): I would have liked to have had the opportunity to comment about the Thorson case because it was one of the cases that I did allege myself in a case that is of some consideration entitled Joyal versus Air Canada.

Mr. McGrath: You are a man of considerable restraint, Mr. Chairman.

The Joint Chairman (Mr. Joyal): And I think that the honourable member perhaps may read the judgment of the Superior Court of Quebec and he might shed some light on the questions that he had in mind.

Mr. Kaplan: I know it is unusual for a witness to raise a point of order, but since I am going to be present for clause-by- clause I might ask what my status is here, and if I wanted to intervene and comment on a matter being discussed by the Committee would I have the freedom to do that or am I here only to answer questions if a member chooses to ask me?

I will accept whatever the rules are but I want to know whether I should be thinking in terms of intervening or in terms of responding only?

The Joint Chairman (Mr. Joyal): I will just say before I invite the honourable Jake Epp to answer that we heard last night that the members of the Official Opposition intend to

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introduce an amendment to protect the deaf. I understand that the mute are already protected.

Mr. Kaplan: I know the members of the Conservative Party expressed great satisfaction with my participation last night: I did not say anything.

The Joint Chairman (Mr. Joyal): I would like to invite the honourable Jake Epp to comment on that.

Mr. Epp: Mr. Chairman, I do not want the record at all to show that when you were using those two terms, that you were speaking about the Minister.

However, I want to say to him that I think in the collegiality that we have developed in this Committee, that he should consider his interventions as not only important but welcome.

The Joint Chairman (Mr. Joyal): What I would like to do, with the consent of all the honourable members, and I am quite sure that I speak on behalf of the honourable Senator Hays, is to invite the Minister to bring it to the attention of the Chair when he thinks that he would help honourable members with a point of information or a comment on one or the other amendments that are under discussion and I would certainly like to reassure him that we would invite him then to intervene and put forward his views.

If there is no further intervention at this time, then Mr. Hawkes.

Mr. Hawkes: Mr. Chairman, a brief point of order. The messenger has just delivered two of the N.D.P.’s amendments. They are marked “Confidential”. I am moved to ask whether that is an indication that the N.D.P. is not going to support our amendments on freedom of information.

The Joint Chairman (Mr. Joyal): Mr. Robinson.

Mr. Robinson: The record should indicate that is not our marking, Mr. Chairman. It is the Clerk who has so marked it.

The Joint Chairman (Mr. Joyal): I would like to say to honourable members that when anything has the mark “Confidential” on it, the document receives great press coverage; and that should reassure members of the N.D.P.

We are then on Schedule B of the Constitution Act, 1980, Clause 1. On that very clause, I have many amendments. I would like to recognize, first, Mr. Epp.

Mr. Epp: Excuse me, Mr. Chairman, but just before you get to the clause-by-clause, I thought there was some understanding that if there were some quick questions to the N .D.P. they might be asked.

I am not trying to stall, but I believe there was agreement. I have one or two questions and perhaps one or two other members do, for the purposes of clarification.

The Joint Chairman (Mr. Joyal): I have interpreted the attitude of honourable members around the table that members, at least on this side of the table prefer to wait on a clause-by-clause basis to question the N.D.P. on one or the other amendments that the New Democratic Party wanted to propose.

[Page 20]

If members of the Official Opposition have some questions of general interest or general information to obtain from the N.D.P. before we start on the clause-by-clause basis, then I would like to invite them.

But it was the understanding of the Chair that that was already completed. I would certainly like to invite you, Mr. Epp.

Mr. Epp: Thank you.

Mr. Chairman, I will be very brief. Might I ask Mr. Nystrom or a representative of the N.D.P., just for our sake, this: they said they would be moving amendments relative to the amending formula. Could they give us the gist of their amendments to the amending formula?

The Joint Chairman (Mr. Joyal): Mr. Robinson.

Mr. Robinson: Mr. Chairman, I am afraid that at this point …

An hon. Member: Is it confidential?

Mr. Robinson: No, it is not confidential. I am perfectly prepared to answer questions, and I know Mr. Nystrom would be as well. As to the first 15 clauses with respect to which we have indicated we will be tabling amendments at the earliest possible opportunity in writing.

However, at this point we are not in a position to respond further in detail on the other areas. Certainly, if there are any questions of clarification required, I would be perfectly prepared to deal with them now or tomorrow when the actual written proposals are tabled with respect to the first 15 clauses.

The Joint Chairman (Mr. Joyal): Mr. Epp.

Mr. Epp: Mr. Chairman, respecting Mr. Robinson’s statement, I will not pursue the question and I propose to wait until the amendments are before us.

The Joint Chairman (Mr. Joyal): Thank you very much. Seeing that there are no further questioners on my list in relation to the presentation made this afternoon by the N.D.P. Party I would like to invite the honourable members of this Committee to take as the basic text of our work and study, the document that was tabled in the House of Commons entitled Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada—The Prime Minister—this one that I am indicating which honourable members should have in their hands; and I would like to call Schedule B, page 3 of the Constitution Act, 1980, Part 1, entitled Canadian Charter of Rights and Freedoms, Guarantee of Rights and Freedoms.

On Clause 1—Right and Freedoms in Canada.

The Joint Chairman (Mr. Joyal): On that very clause, have been informed that we have to deal with three amendments. First, an amendment put forward by the Conservative Party; secondly, an amendment put forward by the N.D.P. party; thirdly, an amendment proposed by the Liberal party.

After consultation with the Clerk, as was said yesterday, we suggested that we deal with those amendments in the usual way, which is to call them in order as they amend—parts or other sections of the clause.

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So in accordance with that, the first amendment we should deal with is that moved by the Conservative Party. I would like to invite Mr. Jake Epp.

Mr. Epp: Mr. Chairman, just before I get into that, I agree with the procedure that you have established. That is the general procedure in the Committees.

But I know from other Committees we have worked in, if it was felt by members of the Committee that the flow and the debate might be shortened or be more clear, to change that order, that we have also change the order.

What you have expressed, Mr. Chairman, has been the guideline; if a dispute developed that was the guideline we all followed.

Now, with all respect to Clause I, I would suggest that you accept the Liberal amendment first in Clause 1, because you will recall yesterday my amendment to Clause 1 incorporated the Liberal amendment and that is not on the table if I moved my amendment; also I could not include the Liberal amendment in mine to give mine flow because should ours be defeated—and I am sure that will not happen—but should that unhappy prospect ever occur, then we would also have defeated the Liberal amendment, and additionally, it would mean that the Liberals would then feel they have to vote against ours simply because they would not want to vote against their own amendment.

If that is the case, then I hope there is agreement around the table that you receive the Liberal amendment first.

The Joint Chairman (Mr. Joyal): Before I invite the honourable Senator Rousseau, I would like to say to the honourable members that the suggestion put forward by the Chair is to assist honourable members in dealing with all the amendments in the proper order.

As honourable members might know—and there are many members who have sat on many Standing Committees—sometimes there are many amendments, subamendments, and so on, and we have to devise a proper method of ensuring that we move forward.

The Chair is always agreeable to receiving suggestions from honourable members which would make our study easier.

I think the suggestion put forward by the honourable Jake Epp is very sensible in that respect.

I would like to invite Senator Rousseau, followed by the honourable Bryce Mackasey on that point.

[Translation]

Senator Rousseau: On a question of privilege, Mr. Chairman.

Are there precedents concerning the status of substitutes in committees? Do we vote on behalf of the member we replace or on our own behalf? I am not a member of the standing committee, I am a substitute and I would like clarification on the procedure.

The Joint Chairman (Mr. Joyal): There is not really a status for substitutes. It is true that when the House of Commons and the Senate have passed the resolution institu-

[Page 22]

ting this committee, a number of members and senators have been nominated by each of the houses afterwards.

However, on several occasions, some of those members from the House or the Senate, have not been able to come to the meetings for different reasons. The members replacing them have exactly the same status. So, when they are invited to vote by the clerks or the chair, they do so on their own behalf and not on the behalf of the member they are replacing and who had been nominated by the Senate or the House.

Does that answer your question?

Senator Rousseau: Thank you, Mr. Chairman.

[Text]

The Joint Chairman (Mr. Joyal): The honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, Mr. Epp has made some very valuable suggestions and obviously, he does not want us to become bogged down on amendments and subamendments and what is appropriate in parliamentary procedure. Fortunately, we have very experienced clerks. I would like to make two suggestions, since the honourable Jake Epp suggests that we may not proceed on the basis of one, two, three, four, five and that we move around; and that at least we limit that movement or deviation to within a section.

The other matter is this. It is only a suggestion. I do not want to debate it or speak to it. But it seems to me it might be useful if over the weekend—and we are getting close to that now, because tomorrow is Thursday; perhaps even Monday—but let us say by Monday, perhaps a representative of each party could agree to what clauses are nonconsequential, or nondebatable in the sense that they are acceptable to everybody without prejudice.

If somehow we knew how many of the clauses, whether they are five, 10, 15 or not, are mutally acceptable, and can pinpoint those early in the matter, it would give us more time to debate the clauses where there is greater differences of opinion.

It would seem to me to be a useful exercise if that were possible.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, just on Mr. Mackasey’s first point, it was my proposition that we work clause-by-clause and not in sections or parts. Secondly, I cannot give him the commitment as to which there might be agreement. I think you should call the clauses as is done in other Committees. There might be some clarification needed or a word change which we could agree to very quickly.

I think we would like to make our work as accurate as possible, and I think that would restrict you. And if I may just

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bootleg one other point in, I understand that we are now working on the basis that we have stood the resolution, the British bill and the title and that we will call that and any amendment thereto after we have been through the first 59 clauses as related to the proposed resolution.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.

Mr. Nystrom.

Mr. Nystrom: Just to reiterate what I have said earlier, I think we are dealing with a clause-by-clause, Clauses 1, 2, 3, 4, 5 in that order.

I think there is agreement between Mr. Epp, Mr. Austin and myself that if any member of the Committee wants to stand a clause for a short period of time, we can do that, and give that person time to back and consult or reflect for a short period of time.

The Joint Chairman (Mr. Joyal): Thank you very much.

We are then on Clause 1. As was suggested by the honourable Jake Epp that we proceed first with a government proposed amendment, the only point on which I would like to draw the attention of honourable members is that we have an amendment proposed by the NDP party. Part of the amendment which has been proposed by the NDP overlaps that put forward by the government.

That matter must be considered by honourable members at this point before I go to the proposed amendment of the government.

As was stated earlier, if I were to deal with the amendments in order, I would have called first the amendment put forward by the Conservative Party, and then that by the NOP Party, and finally, by the Liberal Party.

That is the small difficulty I wanted to suggest to the honourable Jake Epp, accepting his suggestion.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, I think I am trying to get some movement out of our discussion today. I leave the matter in your hands, but it would be my thinking that ours could come last, because we do not in any way change the wording of the amendment proposed by the government. I leave it in your hands on that basis.

The Joint Chairman (Mr. Joyal): I would like to invite Mr. Irwin, as Parliamentary Secretary to the honourable the Minister of Justice to move the proposed amendment.

Mr. Irwin: Mr. Chairman, on July 1, I 961, the honourable John Diefenbaker said:

I know there are some who feel a sense of embarassment in expressing pride in our nation, perhaps because of the fear that they might be considered old-fashioned or parochial. I do not belong to the group.

Neither do I, Mr. Chairman.

It is with pride that I move, on behalf of the government, the first amendment.

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I move that Clause I of the proposed constitution act, 1980, be amended by striking out lines 4 to 6 on page 3 and substituting the following:

reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

So that that clause would read:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin.

Senator Asselin.

[Translation]

Senator Asselin: Every time that an amendment is introduced in English I would want it to be also read in French to see if there is correspondence.

The Joint Chairman (Mr. Joyal): Certainly, Senator Asselin. Either the chair could read it or ask for a member of the moving party to read it in French. I do not think this would be a problem for any party.

I will thus invite Mr. Eymard Corbin to read the French version of the amendment proposed by the liberal party. Mr. Corbin.

Mr. Corbin: Excuse me for a second, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Certainly.

Mr. Corbin: Mr. Chairman, I will now read the French text. It is moved that Clause I of the proposed Constitution act, 1980, be amended by striking out lines 4 to 6 on page 3 and substituting the following:

Rights and Freedoms in Canada.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin.

[Text]

Any questions or comments on the proposed amendment?

[Translation]

Are there any questions or comments on the proposed amendment?

[Text]

I realize that honourable members might be ready for the vote on the proposed amendment? The honourable Jake Epp.

[Page 25]

Mr. Epp: Mr. Chairman, the reason we are in this procedure is for Clause 1 and the manner in which we have discussed it with those who had drafted it. There were difficulties last night.

I think Committe members have accepted that it is only for Clause I that this procedure is causing some difficulty, and after that we will be in the areas outlined by you.

I take it from all members that while we may be voting on the government’s amendment, that does not prevent us from moving our subamendment, though it is irregular for reasons of structure of this amendment as it relates to the structure of my amendment. I think that is agreed.

Is that agreed, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Absolutely. I have no objection at all. I think no 0ne will doubt that what we have voted does not preclude anyone from proposing any additional or subamendment to any of the clauses that we are dealing with or discussing.

Mr. Robinson?

Mr. Robinson: I do have some questions with respect to the proposed Liberal amendment.

I am not at all clear to whom those questions should be addressed, whether it is Mr. Irwin or the Minister. Presumably, it would be the Acting Minister of Justice.

The Joint Chairman (Mr. Joyal): I would invite you to put your question, and I am quite sure that in the light of the question, we will be in a position to direct the question to one or other of the honourable members.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

My question with respect to the proposed Clause I, naturally intimately related to the proposed amendment we will be making. There is some difficulty in that.

But I would like, first of all, I would like to confirm that we welcome the extent to which the government has moved on this proposed clause which has been referred to, Mr. Minister, among other things as the “Mack Truck Clause” prior to the proposed amendment.

I wonder, though, why it was thought that the appropriate location for a limitations clause was right at the very beginning of the proposed Charter of Fundamental Rights and Freedoms, and whether you would be prepared to look at the possibility of moving the limitations clause in whatever form we may finally end up with—and naturally, there may be complications, because if there is a preamble in it it would be inappropriate to do this; but if there is no preamble, on the proposed Clause 1, moving the limitations clause to the end of the proposed Charter?

In other words, I believe it would be important symbolically, if nothing else, to start out with the list of fundamental freedoms, the mobility rights and a positive statement of what the rights are, and then at the conclusion of the proposed Charter to indicate what limitations might exist on those

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rights, rather than starting out with limitations and then a statement of rights.

Mr. Kaplan: Well, before directly answering the question, I would like to understand that you are suggesting that the difference is symbolic, and that it does not make any real difference.

Mr. Robinson: Certainly, I would not argue that there was any difference in substance in the way this will be interpreted, and I am sure your advisers could confirm that.

Mr. Kaplan: I do not think there any real difference either. I think it is purely a matter of style. Our view of the matter was that it was more realistic and useful to the reader to see at once that the rights were not absolute, but that they were constrained.

That would be made immediately clear to a person consulting the statute without having to read the first 30 sections to find that what was contained in the proposed Clause 1 was 0really not the whole story.

It seems to be more honest.

Mr. Robinson: Mr. Minister, if it is agreed that there is no difference in substance—and we are talking about a document, a Charter of Rights which, hopefully, would be widely distributed to school children, to Canadians right across the country, and I would suggest there is a certain symbolic value in setting out those rights and then at the conclusion of those rights indicating what the limitations, if any, may exist in respect of them, as is done in the Diefenbaker Bill of Rights, where the rights were enumerated and at the conclusion of the Bill of Rights, there are references, for example to the War Measures Act and to other limiting provisions.

Mr. Kaplan: Well, we will have to settle it now. We agree that there is no real difference between the two. The government’s preference for the formulation put forward is that it seems to be more honest.

Mr. Robinson: Mr. Chairman, I have another question with respect to the absolute nature of Clause 1. It is with respect to the absolute nature of Clause 1 and the way in which that clause modifies all of the provisions in the proposed Charter of Rights.

As you are aware, witness after witness has appeared before this Committee, such as the Canadian Jewish Congress, Walter Tarnopolsky, Gordon Fairweather, the National Action Committee on the Status of Women—many, many witnesses have appeared before us to make the point that there are certain fundamental rights and freedoms which should never be abrogated.

Mr. Minister, the argument was made earlier that perhaps there was some difficulty in deciding as to what 1exactly those rights and freedoms should be and there might arguments about some of them.

What I would like to ask you is this. Would you be prepared to look very seriously at the possibility of an amendment which would clarify that there are at least some fundamental basic rights, such as the right to be protected from cruel or unusual treatment or punishment; the basic and fundamental freedom

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from discrimination in the application, in the derogation from these legal rights, which should never be taken away.

The Minister of Justice has indicated in his statement that the concerns of :Mr. Gordon Fairweather and Professor Tarnopolsky have been dealt with in the course of the rewording of Clause 1. That is a fundamental concern which both those persons have raised.

I question whether it is desirable that Clause I should indeed be applied to all of the remaining clauses of the proposed Charter.

Mr. Kaplan: I think you are asking me to take another look at it.

I think, in keeping with the occasion I ought to be definitive and not suggest that the amendments which are being proposed and which may eventually be agreed to by this Committee, may be subject to further consideration by the government and further suggestions of amendments, except in the most unusual circumstances.

So what I think I ought to tell you straight out is that we have considered the idea of a nonderogable right and find that the classification of rights in such categories, even where it has been tried-and I have had a look at the International Charter as well—is rather arbitrary.

One can argue with well-meaning and reasoned classification of rights by other bodies.

We therefore do not think it is inappropriate to begin by characterizing all other rights and freedoms as being subject to reasonable limits, because the reasonable limit would have to be demonstrated in each case.

So where one wanted to make the argument that a right was nonderogable, though it would be rather theoretical as an argument, that would tend to limit the notion of reasonableness.

In other words, the rights will come to be asserted case by case, and in every case the state would be called upon to show that the ‘reasonable limit’ proposed was demonstrably justified, so the issue of whether in the abstract one can classify rights as derogable or nonderogable is theoretical. In saying that, I am laying a foundation for perhaps saving the time of the Committee in commenting otherwise on some of the other measures and amendments I know you will be proposing.

We do not favour the approach of determining in the abstract in an arbitrary way which are derogable and which are nonderogable rights, because they will never arise in that way, but will always do so in particular cases where an agrieved citizen or other person resident in Canada and the “reasonableness” will have to be established by the state at the time.

Mr. Robinson: Mr. Minister, if that is your concern at this point, then I fail to understand how it was that in July of 1980 the government proposed a formulation which is very similar to that which I am suggesting.

In July, 1980, the government stated that there were certain rights which could never be derogated—in absolute terms. Those rights included the right to life, the right to be protected

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from cruel or unusual punishment, the right to be informed promptly of the reason for detention, the right to counsel, the right to be informed of a specific charge, and to be tried within a reasonable time.

Mr. Minister, in July of last year, these rights were stated to be fundamental and basic by the Minister of Justice—your colleague Mr. Chrétien.

What Mr. Chrétien said was that in deciding which right should be included, “We have selected only those which we feel reflect the central values of our society,” and he also said that entrenchment would give clear effect to the rights set forth in the International Covenant on Civil and Political Rights to which Canada is a signatory.

The Joint Chairman (Mr. Joyal): I am sorry to interrupt the honourable member but I would like to remind him that we are no longer on a general discussion on Clause 1. Honourable members are invited to put questions or make comments, but in very strict relation to the proposed amendments, and I have certainly invited the honourable members to put questions but I would like to remind the honourable member that he has to address the witness or the other honourable members in the context of the proposed amendments and not reopen the discussion on the general context of the whole Charter when we are dealing with one amendment, and I think that the intervention of the honourable member, he should make up his mind on his position how he will vote, in favour or against the amendments and not open a general discussion because what he is doing now is not the proper way, as the Chair understood the question and the statement that he is making now, and that I think is the understanding that is followed in all the Standing Committees of the House in dealing with subamendments and amendments.

Mr. Robinson: Mr. Chairman, perhaps there is some misunderstanding. I had assumed that there was an opportunity to question the Minister on the rationale for a proposed amendment. That is precisely what I am doing in my questioning.

The Minister has, as I understand it, decided not to make certain recommendations with respect to a limiting clause in Clause 1. This was contained in earlier government formulas and in attempting to determine how to approach this paticular amendment, Mr. Chairman, it is rather important that we understand clearly what the rationale of the government is.

The Joint Chairman (Mr. Joyal): I understand that the honourable member might need additional information to make up his mind but I would like to invite him to restrict his questions to the very words of the proposed amendments and not reopen a general discussion on the over-all philosophy of a charter of rights, because that in my mind has been, that opportunity has been afforded the honourable member with all the witnesses and experts and the groups that appeared here and in the exchange of views that we had an opportunity to have in the past days and weeks.

That in my mind has been the understanding as we had it previously; I think most of the interventions, if not all the

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interventions of the honourable members would be in arguing and trying to convince the other members why they should vote yes or no in support of the proposed amendments or subamendments and not have a general discussion about the proposed amendments or the proposed wording.

That I think is the proper procedure and if I might receive other interpretations from the honourable members around the table I would certainly invite them to do so.

Mr. Nystrom.

Mr. Nystrom: I agree with you, really, Mr. Chairman, that one has to enforce the rule of relevancy and of course the Chair has to make a judgement call as to whether a certain member has been relevant.

My understanding is that we can ask any question that is relevant to any amendment that has been moved. My understanding is also that we have the right to debate any amendment that has been moved and I certainly intend to enter many times into debate on Liberal amendments, on Conservative amendments and on our own amendments, and debate them as well as I possibly can and with as much enthusiasm as I possibly can, and I just want to make it very clear that we intend to do that.

I intend to try to ask this Minister questions in a few minutes and enter into a debate, perhaps, with him on the wisdom of his amendment and I think it should be understood from the beginning that we have that right, and if we do not have that right then what good is the Committee?

However, I do want to say, Mr. Chairman, of course you have to make judgment calls as to whether or not we are relevant. If you do not think we are relevant, then of course you have to call us to order, but I want to underline the point that we intend to pursue these amendments, we intend to question these amendments and we intend to debate these amendments for as much time as we see fit.

Senator Asselin: We will be here next year.

The Joint Chairman (Mr. Joyal): I certainly do not want to question the rights of the honourable member to debate the amendments, but I would like to invite them to debate, to use his words, to debate the amendments and not to reopen the general debate on all the Charter.

I think that specific amendment, for instance, has a scope that is very well worded and very well defined, and that I think is the framework in which the question and the debate should take place, and that is the advice that I wanted to forward to the honourable members, so Mr. Robinson …

Mr. Robinson: Mr. Chairman, I appreciate the guidance from the Chair although I must say that I hope it is clearly understood that one of the concerns is precisely this, Mr. Chairman, that Clause I qualifies all the remaining sections of the proposed Charter of Rights.

Now, we are not asking about an individual section here, we are talking about a section which touches upon every aspect of the proposed Charter of Rights and it is in that context I ask the questions that I am asking: namely, why is Clause 1

[Page 30]

touching upon the rights and protections from cruel and unusual punishment, for example?

Why is Clause 1 permitting discrimination in certain areas? Clause 1 qualifies all remaining parts of the Charter. I am not, with respect, Mr. Chairman, opening up a debate on the advisability or otherwise of entrenching a charter or anything of that nature; what we are discussing here is the fundamental question of the extent to which the rights that are set out in the Charter should be limited, and that is my understanding of the direction of my questioning. Perhaps I was not clear, but certainly that was my understanding and I believe the Minister was responding in that light.

The Joint Chairman (Mr. Joyal): So I would like to invite you, Mr. Robinson, to continue to put your questions in that very context that we are under a debate now and not on a general information session about the clause or about the over-all project and I would like to invite you to continue in that framework.

Mr. Robinson: Thank you, Mr. Chairman.

Mr. Minister, I would then ask why it was felt that the formulation of the July draft in which there were certain fundamental rights, a fairly extensive list of fundamental rights that were held not to be derogable, was included in the proposed Charter, why that approach was rejected here when those rights were clearly specified at that time?

Mr. Kaplan: Well, the government has had the benefit of all the debate and discussion that has taken place on the question since then, and it has seemed to us that the distinction is an arbitrary one, the concept is theoretical, and as a practical matter rights will appear in context when the derogation by the state challenged in court.

So that is a theoretical and very arbitrary way to proceed. A second kind of objection in thinking was tha it implies that the nonderogable rights are more important than the derogable rights, and reviewing the category it struck us that the derogable rights were a very important part of the values of a free and democratic society and classifying them as we had originally proposed tends to diminish the weight which, in a free and democratic society, is attached to both classes of rights.

Mr. Robinson: Turning to the final area, if I may, Mr. Chairman, on Clause I, my final area of concern with the proposed reformulation.

As you know, Mr. Minister, the proposed Clause 1 applies in identical terms to all clauses of the proposed Charter. Earlier formulations, earlier federal government drafts applied two different tests: one test to the fundamental rights and freedoms, I think certainly a test of demonstrable justifiability or something of that nature is appropriate there, but a second test and a far more stringent test in dealing with legal rights. In that case a formulation very similar to that of the Covenant was adopted, namely that there had to be a public emergency, the restriction on rights could only be limited to the exigencies of the situation in a particular case and there was a stricter

[Page 31]

test in dealing with legal rights as opposed to the fundamental rights and freedoms.

Why have you chosen to reject that particular approach in your reformulated Clause 1?

Mr. Kaplan: Again it was because the classification of rights between those two categories seemed arbitrary for a great many of the rights that had to be considered when that formulation was used and classified either one way or the other.

We also, in the redrafted clause subject, which refers to the reasonable limits as can be demonstrably justified, we feel that we have come up, with a lot of advice, with a very dynamic test, one which is better than the one originally proposed by the government and one which eliminates the necessity for the attempt which we had made to classify rights in two categories.

Mr. Robinson: My final question, Mr. Chairman, if I may, then is this:

Mr. Minister, in view of the many representations by distinguished groups, Civil Liberties Association, Mr. Tarnopolsky, Mr. Fairweather and others, in view of their representation, what I found at least to be persuasive representations, that there were certain rights which should never be derogated from, who in fact did you listen to in arriving at your proposed Clause I, which witnesses did you listen to, which witnesses made a recommendation in line with your proposed Clause I that there should be no derogable rights?

Mr. Kaplan: Well, I think the government was influenced even by the witnesses with which it disagreed, and we have tried to reflect in the version the cutting edge that we want in the Charter of Rights, a Charter of Rights and Freedoms that will make a real difference to the Canadian people, and I would not want to indicate that any of the witnesses were ignored because that is not the case.

Mr. Robinson: Well, there were certainly a few that were not listened to. Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Mr. Nystrom, you had some comments to put forward?

Mr. Nystrom: I would like to ask the Minister about his amendment as well. His amendment of course reads that the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, and I would like to ask him whether or not some of the equality rights in Clause 15 can ever be subject to any limitation whatsoever, and I am thinking here of things such as race, ethnic origin and colour that are listed?

[Page 32]

I mean, are there any circumstances whatsoever where one can justify a limitation on those rights, be it in a wartime situation or whatever?

Mr. Kaplan: Which are the three that you have identified?

Mr. Nystrom: I am thinking specifically of race, ethnic origin and colour?

Mr. Kaplan: Well, here is the problem: what about national origin or religion?

Mr. Nystrom: That is what I said. I said race, ethnic origin or colour.

Mr. Kaplan: Things like national origin or religion, why are you excluding them? I mean, that is my point, it is a spectrum, I suppose, and you can see some where it would be very hard to conceive of a reasonable limit that would be justifiable or maybe impossible to conceive of some, but it becomes easier to do so as you move across the spectrum to the other end where some right could very easily be subjected to some reasonable limit, and it was because we did not see the rights falling into two clear categories.

If there was an easy dividing line, it would be easy, but the distribution of rights is sort of like a bell curve rather than like a “U”. There are some that are easily at one end, some perhaps that are easily at the other, but the broad spectrum of rights tend to have both characteristics.

So taking the dynamic test of reasonableness at the beginning and the burden of proof being put so heavily and clearly on the state, we thought that the classification of derogable and nonderogable and the burden that that would place on future generations of school children and their teachers to explain and understand just was not justified.

Mr. Nystrom: I just regret that the Minister does not reconsider some of the representations that have been made to us by many people such as Gordon Fairweather because there are some rights I think that should never be limited. Discrimination on the basis of race and ethnic origin and colour.

There are some rights, of course, Mr. Minister, that are a bit different. You could look at age, it is not reasonable to let a three-year-old vote or a five-year-old drive a car, so perhaps you should have a test there where you have to be reasonable, but I just wondered why some of the obvious ones were not listed.

Some people made the argument that a constitution is only as good as the will of the people. The Americans had a very str0ng Charter of Rights for many, many years before the slaves were freed, I think for about I 00 years, and some of these things might be fine now, our society might be very reasonable now, but it might evolve into something very different in 20 or 30 years.

Mr. Kaplan: Well, I think that a Charter of Rights and Freedoms, a good one, can indeed affect the will of the people

[Page 33]

and can indeed offer protection, but there is a role for the courts and the test that has been put forward, as I have indicated, is a dynamic one which we think would assure that those rights that you feel are absolute, I am not arguing with you about them, would be found to be absolute by the courts, and so it is a conceptual simplification in which nothing is lost.

Mr. Nystrom: Just one final question. My understanding, then, from your answer is that a situation which happened to our Japanese Canadian friends a few years ago, the internment of Japanese Canadians, would not happen if we had this kind of Charter enshrined with this kind of a limitation clause in it?

Mr. Kaplan: I agree with that.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

If I may, before we continue our discussions, I just want to point out at this point, and I think it would be very useful for the understanding of our study and progress, that I had considered very carefully in inviting members to ask for questions at this phase of our work, I have considered very carefully the use of time allocation, that as we have had an opportunity during the preceding steps and especially the time allocation from November 14, 1980 to January 9, 1981, and that covered the phases where we have heard witnesses, groups and citizens, and I have all the figures here in detail and I can inform the honourable members that the Liberals have used 34.9 per cent of the time, the Conservative Party 43.9 per cent of the time and the New Democratic Party 21.8 per cent of the time.

If the time allocation had been strictly based on the representation of the three parties around the table, the Liberals would have used 60 per cent of the time, while in fact they have used 34.9 per cent of the time; the Conservative Party would have used 32 per cent of the time and they have used 43.9 per cent of the time; and the New Democratic Party would have used 8 per cent of the time while in fact it did use 21.8 per cent of the time.

So if there is a party that has had its chance, I think it is the New Democratic Party and I would not like at all to leave the Canadian public and the media and honourable members around this table with the impression that we want to in any way prevent the representatives of the New Democratic Party to participate in the debate.

In fact, in so doing I do not think that the Chair has been unfair in recognizing the representative of the New Democratic Party because I am quite sure that honourable members of the two other parties I would have opposed at one point the use of time if they had felt that the representatives of the New Democratic Party were really not fair or were really not having their fair input into the discussion and exchange of views, and that is the only point I wanted to make at this point because I think it was helpful and it is helpful to the way in which will continue our discussions for the last step of our work.

[Page 34]

I do not see any more questioners on my list or honourable members who want to express comments on the proposed amendment as put through by the Liberal party.

Honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

I wanted to take up one point that Mr. Robinson had raised in his questioning of the Minister when he referred to witnesses, and it is my understanding that the Canadian Human Rights Commission, through the presence of Mr. Fairweather on November 14, 1980, proposed to the government alternative methods of amendment.

I do not think I will take time to read it but there was one with three clauses and the alternative is in fact the clause that the government has accepted in Clause I with the difference that Mr. Fairweather used the words “are reasonably justified” and the government is using the words “can be demonstrably justified”, but the words are very, very close and I think probably, Mr. Minister, were intended to have the same meaning.

I wonder if I could ask you whether in fact you were accepting Mr. Fairweather’s suggestion but giving the words a more careful consideration?

Mr. Kaplan: I understand that it was Mr. Fairweather’s recommendation that was given weight at this point but the Minister himself felt that “can be” increased the burden on the state.

Senator Austin: I wanted to make that comment, Mr. Chairman. Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Austin. Any other questions before I call the vote on the amendment as read by Mr. Irwin?

Honourable Senator Duff Roblin.

Senator Roblin: Mr. Chairman, I appreciate the point that has just been made by Senator Austin but I would like clarification.

As I recall what Mr. Fairweather said, he used the words attributed to him but did he also not have two or three dependent clauses in which he gave an absolute exemption with respect to certain categories?

I seem to recall that that is what he really had recommended and if that is the case I just wish to record the fact, I make no comment on it.

Mr. Robinson: Mr. Chairman, perhaps to resolve the confusion that may have arisen in this area I have Mr. Fairweather’s brief before me and indeed, Senator Roblin is quite accurate.

The specific recommendation which was made by Mr. Fairweather was that Clause I should read as Senator Austin suggested the first clause, but then Clause 2 would read as follows:

No limitations on the legal rights or the nondiscrimination rights set out in this Charter may be made under this provision.

And then subclause (3):

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This charter guarantees the equal right of men and women to the enjoyment of rights and freedoms set out in it.

He then goes on to say:

If Parliament should consider that subclause (2) and subclause (3) do not reflect its intentions then we may want to stick with one.

But his opinion was very clear, and his recommendation to this Committee was very clear that subclause (2) and subclause (3) should be included and that there should be certain rights that should never be derogated.

Senator Austin: Mr. Chairman, if I may just comment, I think Mr. Robinson and I are saying the same thing. Mr. Fairweather in fact offered us a choice and did express his opinion that he would prefer the first of the two choices but he said that the second of the two, and which in fact the government has accepted, would be a desirable choice as well.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Austin.

The Honourable Senator Tremblay.

[Translation]

Senator Tremblay: Mr. Chairman, I seek your guidance on this matter as I am not sure whether or not my question is one of substance. In my opinion, at least, it is simply a wording problem which should be cleared up to better understand the intent of the amendment.

The amendment reads as follows:

Reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Was it the intent of the sponsors of this amendment that the limit actually be demonstrated as justified? In that case, the wording is not appropriate and that is not how I understand the English. Perhaps I have been misreading the amendment, but I do not feel that it states exactly what it intends to. In my very faulty English, I would have said “reasonable limits prescribed by law as it is, or are, demonstrated to be justified”. Si c’est cela qu’on voulait dire.

So, I would just like to know what, in effect, is the intent of the amendment? Is the demonstration in question optional or obligatory?

[Text]

The Joint Chairman (Mr. Joyal): I would certainly have my own interpretation but I would invite the honourable Acting Minister of Justice to answer on that.

[Translation]

Mr. Kaplan: It is up to the judge to determine whether the demonstration is satisfactory or not and, in the latter case, he would not make a favourable decision.

Senator Tremblay: So, does the wording effectively state that the demonstration must be made?

Mr. Kaplan: Yes. In my opinion, the wording is quite clear and I maintain that it is very close to the French version. Are you suggesting that the French …

[Text]

Senator Tremblay: I am not asking the question about the French translation but about the English phrase “as can be demonstrably justified”. Does it mean that the demonstration

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that is justifiable has to be made or does it refer just to the possibility that it could be made?

Mr. Kaplan: My interpretation is that a court would have to be satisfied.

Senator Tremblay: With a demonstration?

Mr. Kaplan: With a demonstration.

Senator Tremblay: So I was wrong in my reading.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

I would now like to recognize the honourable Senator Goldenberg.

[Text]

Senator Goldenberg: Just for the sake of the record, Senator Roblin has twice referred to Mr. Fairweather’s recommendations. Mr. Robinson referred to Mr. Fairweather’s recommendations. I think the most relevant remark by Mr. Fairweather is the remark he made after the amendment was produced. He expressed himself as being very pleased and congratulated the government on what it had done.

That is all I have to say, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Goldenberg.

So do I see that the honourable members are ready for the vote?

Some hon. Members: Yes.

Motion agreed to.

The Joint Chairman (Mr. Joyal): I would then move to the amendment as proposed by the Conservative Party and invite, in so doing, the Hon. Jake Epp.

Mr. Epp.

Mr. Epp: Thank you, Mr. Chairman.

Mr. Chairman, in moving an amendment to Clause 1, I want to indicate to members of the Committee what is marked C.P.-1. We hope the railroad will work but I understand what it is, in most cases amendments are put in in an individual’s name and I did not want to do that for the simple reason that there will be various members on our side who will be moving amendments and so you will see that the amendments are listed as C.P. and onwards. I understand that that means Conservative Party and not a railroad.

Mr. Chairman, that being the case I move that Clause I of the proposed constitution act, 1980 be amended by striking out line 1 on page three and substituting the following:

1. Affirming that

(a) that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free individuals and free institutions, and

(b) individuals and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law, the Canadian Charter of Rights and

Then it ties into the amendment that we have just moved.

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I would ask Senator Tremblay, if it is the wish of the members of the Committee, to read it in French.

[Translation]

The Joint Chairman (Mr. Joyal): The honourable Senator Tremblay.

Senator Tremblay: It is moved that:

[Text]

Que l’article 1 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la ligne 1, page 3, de ce qui suit:

1. Attendu que

a) le Canada est fondé sur les principes de la suprématie de Dieu, de la dignité et de la valeur de la personne humaine, ainsi que de l’importance de la famille dans une société d’êtres et d’institutions libres;

b) Attendu que les êtres et les institutions ne demeurent libres que si la liberté s’appuie sur le respect des valeurs morales et spirituelles et de la légalité, la Charte canadienne des droits et

[Translation]

Now, this having been read, and I must assume responsibility in that respect, I may have read too quickly the French version last night. I would bring some corrections without amending the amendment, but only substituting words.

Instead of the term “société d’êtres”, I would prefer “société de personne et d’institutions libres” and, in the next sub-paragraph, “les personnes et les institutions”.

So, if everyone agrees, I would replace the term “êtres” which is too vague in French, by “personnes”.

The Joint Chairman (Mr. Joyal): Certainly. I have no objection, Mr. Tremblay, to this slight modification which does not change the meaning in any way.

[Text]

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, it is with a great amount of personal satisfaction and honour that I move this amendment. As members already know, these are the words of the Canadian Bill of Rights, 1960. They have been modified only to conform to the syntax of the proposal before us, otherwise they appear in our amendment as they are in the Charter of Rights.

Mr. Chairman, I have gone back into the debates of 1960 and Mr. Diefenbaker, always having the ability to seize the moment, presented open debate on the Canadian Bill of Rights on Dominion Day, July I, 1960. He did so, I believe as I read the debate, for reasons that became, and my colleague Mr. McGrath was there so he can speak from personal experience, but it was done, Mr. Chairman, to give to Canadians a symbol and values to which all future generations could not only aspire but hold as important.

For many of us who came from groups that were not of the two main linguistic groups but who were, in later years, generally referred to as ethnic Canadians, for many of us it was a very positive and very open demonstration that no longer were we to be considered as hyphenated Canadians as was the

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experience for many of those who were of the minority groups and what their experience had been in the past.

Those of us who were obviously fairly young at that period of time had not experienced some of that discrimination; but we knew from the stories and the experience related to us that many people had in fact experienced a hyphenated Canadianism.

It has been since 1960 for many of us important words which were in the Charter of Rights, that not only were they to be a symbol to us, but also an ideal towards which to aspire or work towards achieving.

As I read the debate and the words of Mr. Diefenbaker at that time, I am convinced that he would like to have seen—and this is a personal evaluation—eventually the Charter that he had proposed to Canadians, and which was proposed by Parliament, enshrined in the Constitution.

Not everyone agrees with that reading of history. But it is my view of that reading—and when I had an opportunity as very much a freshman member of Parliament coming to Ottawa, and having discussed the matters with Mr. Diefenbaker, I remain convinced today that eventually it was his hope that that would happen.

Additionally, Mr. Chairman, he was conscious of the need to preserve the Canadian federation. He mentions that a number of times in the debates of that period.

While he does not mention directly that he wanted to see it enshrined, he said it would not be possible at that time, because he had not sought provincial agreement during that period.

But I believe it is now for us who sit around this table to recommend to Parliament that those ideals which captured the nation at that time, and which have been the ideals for many of us since, that it is a real opportunity for us to enshrine those principles into the constitution of Canada.

Mr. Chairman, as I read the proposed Charter of Rights and Freedoms of the the government, I think members opposite would agree that they made an honest attempt to incorporate into their Charter expressions of freedom that they thought were important for the nation.

I am sure they would also agree that that expression was put forward with a sense of responsibility as well as a sense of wanting to enshrine these matters for the benefit of all future Canadian generations-that they would accept the fact that their Charter is not perfect and that it could be improved upon, and that the lessons of the past and the experiences of the past are important for us as we look at the Charter today.

Mr. Chairman, what the Diefenbaker words do, is, I believe, to establish once and for all that the supremacy of the nation must come from God; that we must up front in our Charter, respect and enshrine the dignity and worth of the human person. that the family is the cornerstone of Canadian society—that recognition of that cornerstone is important; and that our parliamentary traditions, as we call them “our three institutions” should be enshrined as well.

Lastly, Mr. Chairman, a number of us around this table, have said that we believed constitutional Jaw goes beyond

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simple statute law; that for the nation, it is also a law which establishes a moral guide by which we shall live and as to how we shall live one with another.

It is for that reason that we also include the moral and spiritual values and the rule of law.

I commend these words to all members and ask for their approval.

The Joint Chairman (Mr. Joyal): Thank you very much, hon. Jake Epp.

Mr. Ogle.

Mr. Ogle: Thank you, Mr. Chairman.

To me this is an extremely important moment in my life and in the life of Canada as we begin a step by step look at the constitution that will in future guide the lives of Canadians.

I appreciate the fact that there are people who probably would be upset that the word “God” might be included in the constitution. I respect their views completely because I really believe in freedom of conscience.

I really believe that people have the right, if they cannot see that to be a fact, to say it and to be respected in society.

Yet I believe this country of ours has been founded by people who, on the whole, believed in God; and I believe that because of that common belief held by so many, that many of the principles which made it possible for us to have a free society have basically come because of the spiritual values held by those generations of people who went before us.

So I support the amendment, hoping that the spirit which inspired those people because of their religious belief—and in no way taking away from those who do not have it—that we are now in a sense looking down what will be something that future generations can look at and in a way recite.

I know the value of constitutions. I have lived in countries where there was a constitution at 9 o’clock in the morning and there was none at 3 o’clock in the afternoon.

But the tradition I am speaking about here is somehow or other related to the way a civilization grows.

As a final thought, I would like to recall that John the Apostle, when relating about “nation”, said that God is love.

I would like simply to say that I would hope that our constitution and the Canadian nation will be based on the notion that love for another is what will hold us together. Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Ogle. I would like now to invite the Acting Minister of Justice.

Mr. Kaplan: Thank you, Mr. Chairman.

I want to speak briefly on this, because I indicated either yesterday or the day before in answer to a question that the government would very much like to have a preamble in the Charter. If this were the last rather than the first step in delivering a Canadian constitution we would have settled it now.

Because this is merely a step—perhaps a first step—in the development of a charter and constitution within Canada, we

[Page 40]

feel that there should be more importance given to the development of othe proper preamble.

I agree with all the values and principles that are stated. I was taken with Mr. Ogle’s statement. I think some of the principles that he has expressed that are not mentioned in Mr. Diefenbaker’s formulation should be added. I think others should, bearing in mind that the Bill of Rights is a less comprehensive document—the Diefenbaker statute is less comprehensive than this Charter, which, after all, includes the minority language situation, which recognizes ethnic rights, recognizes the fundamental duality of Canada—none of those values are expressed in that preamble, as well they should not have been, because that Bill of Rights was not covering the waterfront of the establishment and foundation of the Canadian society.

I think this preamble needs to be amplified and to include other national values, and that this is not an exercise which can be engaged in in the course of constitutional patriation and the establishment of part of the fundamental Charter of Rights and Freedoms that we are engaged in now.

Let me illustrate it with sadness in a very concrete way. This formulation, which is given to us by the Conservative Party, is less than John Diefenbaker’s preamble. I want to draw the attention of honourable members to the fact that an extremely important difference exists between the English and the French, and I think that difference highlights some of the problems of trying to develop a preamble in the present context of constitutional amendment.

I remember when I was first elected in 1968, one of the burning issues about which Mr. Diefenbaker took a very courageous stand was that Canada was one nation and not two nations. In his preamble he made it very clear that Canada was a nation. So do the English in this amendment. But the French do not. The French refer only to Canada and not to the Canadian nation.

I wonder, perhaps, whether the mover of this motion might like to comment on this; I wonder whether the failure to do that takes account of some of the strong feelings of separatists that Canada is not one nation.

I wonder why the French version does not refer to the Canadian nation in the same forthright way that John Diefenbaker did when his Bill of Rights was tabled in both English and French in 1960.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: Mr. Chairman, just restricting myself to the point raised by the Minister—and Senator Tremblay can reply in terms of language—it was not our intention in any way to reflect our two nations. It is our position that it is one nation. The English text clearly spells that out. If the Minister has difficulty with the French text I am sure all of us would agree that we would be willing to change the French text to meet the wording of the English text. Mr. Kaplan: The Diefenbaker text provides that [Translation] “The Parliament of Canada proclaims that the Canadian Nation” not Canada, “is founded on principles…”

[Page 41]

[Text]

Mr. Epp: Mr. Chairman, the words of the Minister would better satisfy it, and I would accept them.

Mr. Kaplan: I did not mean to suggest that, by accepting the criticism which I have made, which you have done, would make this preambule acceptable.

I only did that to illustrate some of the problems. I suspected that there was more to the ommission than you have indicated. But I use that to illustrate the problem that the government feels justifies letting the formulation of the preambular statements of values and the characterization of our nation be done in the second phase of constitutional amendments.

The Joint Chairman (Mr. Joyal): Thank you, very much, Mr. Kaplan.

I have many names on my list. I would like to invite now Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

In speaking on this amendment, I would certainly like to indicate my profound respect for the views of my colleagues on this question, and certainly I was moved as I am sure all members of this Committee were by the words of my friend, Father Ogle.

I would like to indicate, though, that it is my own personal view that it would be a mistake to propose this as a preamble to the Canadian Constitution.

I would like briefly to explain why. Mr. Chairman, the words which are proposed as the preamble for the constitution, are words, as Mr. Epp has quite properly pointed out, taken from the preamble of the Diefenbaker Bill of Rights—the 1960 Bill of Rights.

Now, the 1960 Bill of Rights did not contain one fundamental freedom which is contained in the proposed Charter of Rights. That proposed freedom is the freedom of conscience, Mr. Chairman—a freedom which is also recognized in the International Covenant on Civil and Political Rights which was, of course, enacted well after the Diefenbaker Bill of Rights.

Article 18 of the international covenant states very clearly that everyone should have the right to freedom of thought, conscience and religion.

Mr. Chairman, that article was accepted by all provincial governments in this country as well as by the federal government as binding upon them.

I note in passing that included a number of provincial Conservative governments. They accepted the fundamental principle of freedom of conscience.

What that means, of course, is that we, as a dualistic society, respect diverse viewpoints; we do not entrench one particular religion; indeed, we do not entrench any religion at all.

We leave Canadians free to choose for themselves on the basis of their own conscience. The proposed preamble would not, I believe, Mr. Chairman, reflect that reality—that impor-

[Page 42]

tant reality in Canadian society: that respect for plurality, which is so essential and critical, and, with respect to my friend, which has evolved over the course of the years since the Diefenbaker Bill of Rights in 1960.

I also note in passing that Mr. Epp has indicated that perhaps it would be desirable had the Diefenbaker Bill of Rights been enshrined in the constitution.

Well, my only response to that is that perhaps some of us should be grateful that it was not in view of its interpretation by the Supreme Court of Canada; certainly Canadian women, Canadian native women for one, would be very unhappy had this been entrenched in our constitution.

Finally, Mr. Chairman—and again I emphasize that I am speaking personally in opposing this particular formulation of a preamble—the preamble does not do justice to some of the other concerns which should be contained in a preamble.

There is no reference, as there was in Bill C-60, to the fundamental rule of the founding peoples of this country which was contained in the preamble to Bill C-60.

There is no reference to the linguistic duality in Canada; there is no reference to the cultural diversity, the great cultural heritage in this country; there is no reference to economic, social, cultural rights: in short, Mr. Chairman, I believe we can do better. As a committee I certainly hope that, under the proposed amending formula, whoever is making these decisions will do better.

I hope there will be that respect for the rights of all Canadians and for the freedom of conscience which is so important and an integral part of the proposed Charter of Rights.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson for your intervention.

I have recognized you on different occasions in our afternoon session today and I have noticed that of course you were not registered as a voting member earlier and I am certainly ready to recognize you, I see on our attendance list that you have participated through at least 40 sessions of our Committee, but I think if I have to recognize you to speak on an amendment or a proposed amendment I think that you should be a fully qualified member for forthcoming sessions, and I know those are only technical aspects that can be solved very easily but you will recognize that other members, if they have to afford all the co-operation that they have expressed in the past for the New Democratic Party should remain the same.

I would like to invite, then, the honourable James McGrath.

Mr. McGrath: Thank you very much, Mr. Chairman.

I shall try to be brief, but first of all I think we have a right to ask who speaks for the New Democratic Party. Is it Mr. Ogle or is it Mr. Robinson? I would like to think in this particular case it is Mr. Ogle because my reaction is more in sorrow than in anger, and to Mr. Robinson I would say this: I did not hear any objections from him when a number of Indian bands appeared before this Committee and that did not call upon the God of Abraham or the Christian God or the Muslim

[Page 43]

God, it called upon the great creator, it recognized a supreme being.

On a number of occasions this Committee was called upon to stand and participate in a moment of prayer in the culture of our aboriginal people to the supreme creator, and I was very struck by that.

What we are doing here today is reaffirming what was established in the Diefenbaker Bill of Rights almost 21 years ago in the House of Commons and I had the honour of being there at the time, but I think it is important to remember that, first of all, we are not dealing with a preamble, we are dealing with a part of Clause I of the bill which states the values on which the nation was founded. I do not think anybody would quarrel with the fact that the nation was founded on these values.

Now, that is not to suggest that there are not other values, Mr. Minister; there are, and to that extent I agree with your argument, but I cannot for the life of me understand why anybody could seriously suggest that this Committee, representing both Houses of Parliament, should not reassert the fact that this nation was founded under God and that we reassert the role of the dignity and the worth of the human person and the role of the family. Is there anyone in Canada who would doubt that? I hardly think so.

Now, you can quarrel with that in terms of contemporary society, and I would allow that, but in terms of the historic fact of this nation I do not think there is anyone that can seriously debate the fact that this nation was founded under the very principles outlined so eloquently in the Diefenbaker Bill of Rights and put forward so very eloquently and sincerely today by my colleague Mr. Epp.

Mr. Chairman, the Minister says there are further values and there is need for further amplification. Well, fine, let us incorporate further values, let us get on with further amplification, but for God’s sake let us recognize the historic fact of Canada and the historic fact of Canada is that this was a nation founded under God, this was a nation that respected the dignity and worth of the human being, that is precisely why this nation was founded and we are merely asking this Committee, we are merely asking Parliament and the government to recognize that in the opening paragraph of the Charter. It does not in any way take away from Clause 2 which recognizes, and I say this in all sincerity to Mr. Robinson, the right to freedom of conscience.

As so dramatically set out by Mr. Ogle, we respect the right of people not to believe just as we respect the right of people to believe, but for those who do not believe all we have asked of them is to recognize the historic fact of Canada and that historic fact is that this nation was founded under the very principles outlined in the amendment put forward by my colleague Mr. Epp, and I cannot seriously believe in my heart that there is anyone on this Committee who would vote against that subamendment.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable James McGrath.

[Page 44]

I would like to invite now the honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

I want to begin by saying that I feel quite affected by the deep emotions which Mr. Epp and Mr. McGrath and Mr. Robinson and Mr. Ogle have presented to this Committee. They are opinions that are strongly felt and deeply believed by those gentlemen and I think also by other members of this Committee.

I have no quarrel whatever with those emotions, I have no quarrel whatever with those convictions, and indeed I believe the Diefenbaker Bill of Rights was an enormous advance in the recognition of individual rights in Canada when it became law in Canada.

I believe that the issue before the Committee is not the moral perceptions, it is not the concepts that were presented in the language of the Conservative amendment, all of which I believe are valuable; the question that is before us relates entirely to the appropriateness of their being introduced into Clause 1 at this particular time.

Are they relevant to Clause 1? Mr. McGrath says that they are not by nature a preamble and that they are relevant to Clause 1, but with the greatest respect to Mr. McGrath, and I do respect him greatly, I believe that they are in essence a preamble and here again I accept entirely the idea that the Canadian constitution should have a preamble. I respect the desires of the Conservative Party to introduce their notion of a preamble as best they can in the document before us, but the fundamental question that we are wrestling with is not the entire constitution of Canada, it is a phase of the constitution of Canada and indeed, when the First Ministers endeavoured to write a preamble they found themselves unable to do so for the very logical reason that a preamble could not be put together in a way that was truly declaratory of the feelings and beliefs of Canadians about themselves before a constitution itself was written.

In other words, as many, many others do, and as is most logical, the preamble and the writing thereof is last, although in the chronology of the presentation it is first. I believe that we must leave, while accepting the idea of a preamble, we must leave the question of what preamble to a future time, we must decide and we cannot yet decide who should write that preamble; for example, would anyone here suggest that the provinces who are partners in Confederation should be left out of the writing of a preamble, a full preamble, a complete preamble to a constitution? Would anyone here suggest that we are ready to write a preamble for the entire Canadian constitution? I do not think we are.

I think that at this point in time we should set aside the concept of a preamble, not attempt to introduce it into our deliberations but I for one, at least, would recommend or would want the Committee to recommend if it were agreeable to all members of the Committee, that in its report we have words of recommendation to the government of Canada with respect to the ongoing need for a preamble and the importance of it being considered by First Ministers at an early time in their subsequent meetings.

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So, Mr. Chairman, I think that states the position. I notice it is 6 o’clock and the bell occurred just as I was coming to an end.

The Joint Chairman (Mr. Joyal): I would like to seek the agreement of the honourable members so that we hear Senator Tremblay, he is the last one on my list of speakers and I think in all fairness if we could hear Senator Tremblay, unless he withdraws, and I have still Mr. Crombie, and if I may personally say, I think it is a very important and basic issue, if we could complete with those two unless you would prefer to start tomorrow morning?

Mr. Epp: Mr. Chairman, I have no difficulty in your recognizing Senator Tremblay but I do not want that to be interpreted that we will call for the vote after that. I intend to continue this matter tomorrow.

The Joint Chairman (Mr. Joyal): It was not at all the intention of the Chair to call a vote.

Mr. Mackasey: Mr. Chairman, I do not want to create a precedent, I would like to hear Senator Tremblay. I suspect why it is important for him to make his remarks right now but clearly, since there is no vote, we should not hear Mr. Crombie and we will continue tomorrow.

Senator Tremblay: May I?

The Joint Chairman (Mr. Joyal) Certainly.

[Translation]

Senator Tremblay: This will be very brief, I should think. I would simply like to dispell any doubts committee members may have had as a result of remarks made by the minister concerning an apparent discrepancy between the English and French text.

Correct me if I am wrong, but I had understood the expression “Canadian nation” to have a very broad meaning and that it referred not only to the people, but to all institutions somewhat in the same way that the expression “United Nations” is used. In French, the expression “nation canadienne” is much more restrictive in meaning. I had the feeling that the word “Canada” was a better translation of the term “Canadian nation” because of the very comprehensive way in which I perceive the expression “Canadian nation”.

It was in no way our intention to make a statement on Canadian duality or on the various uses of the term “nation” in either its singular or plural form.

So, I merely wanted to dispell any doubt and to state that it was not our intention to have the two versions disagree. However, there may be some error of fact in which I thought was the meaning of the terms “Canadian nation” and “nation canadienne”.

Mr. Lapierre: Mr. Chairman, this is not really a point of order, but more of a remark. If that was the Senator’s intention, which I do not really buy completely, then he has really betrayed the much-extolled memory of Mr. Diefenbaker’s concept of a nation, it would have been terrible.

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The Joint Chairman (Mr. Joyal): Order, please.

[Text]

The Joint Chairman (Mr. Joyal): As we had agreed, Senator Tremblay has completed his remarks and the meeting is adjourned until 9:30 tomorrow morning.

[Translation]

The meeting is adjourned.

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