Document Information

Date: 1981-11-30
By: Ontario (Legislative Assembly)
Citation: Ontario, Legislative Assembly, Official Reports of the Debates (Hansard), 32nd Leg, 1st Sess, 1981.
Other formats: Click here to view the original document (PDF). [external site–Ontario Legislative Assembly]

ESTIMATES, MINISTRY OF

INTERGOVERNMENTAL AFFAIRS

[…] 

Hon. Mr. Wells: […] For Ontario, the price of consensus was the acceptance of an amending formula which was not our first choice, and a charter of rights which in some of its provisions could be overridden by Parliament and provincial Legislatures.

I want to remind members that the Ontario government argued in favour of a charter of rights with no legislative override during all the time we supported the federal package. The inclusion of the notwithstanding provision to allow such an override was accepted by us only to achieve federal-provincial consensus. However, as the Premier stated after the conference, this government has no intention of making use of this provision.

It was our understanding of the federal- provincial agreement that no change would be made to section 28 on male-female equality. We were pleased this understanding was finally confirmed a week or so later as a result of intensive post-conference discussion. We are equally pleased by the decision to restore the aboriginal rights section to the resolution.

[…]

Mr. Nixon: […] I want to move on to some of the matters that are specifically in the package. I was glad to hear the minister say that Ontario does not intend now or in the future, which may be some months away as far as they are concerned, to use the “notwithstanding” provisions. It was suggested by some, my colleagues among others, that if that were the case, we should have it removed from the package as far as Ontario is concerned. We might even have a piece of legislation here that would lead to a debate in the House saying, I suppose, that we are not going to use it in this province and we are putting it as far as possible beyond the reach of legislators to come so it is clear that Ontario’s position is one of acceptance for the bill of rights, which is generally accepted to be the best in the world except for those rights that are entrenched in the constitution of the Soviet Union. The experts tell me that is a fact.

That is also a commentary on just how useful entrenched bills have been in the past. While we are glad those rights are entrenched, we still must realize and recognize that it is the men and women in government, as well as those in the courts, as well as those on the bench, and their interpretation of these rights that actually give them flesh and meaning and reality. We can still do something about the notwithstanding area.

I was also interested in the minister’s remarks when he indicated he felt there was no question about the rights of men and women under the constitution and it was only when the debate really got going in Ottawa that it became apparent some Premiers were not prepared to accept those as they had been described and generally accepted. Some of the negotiations following that have re-established them on a Canada-wide basis with the possibility of opting out remaining.

I was interested to read an article by Richard Gwyn in the Star a few days ago, in which he described how Premier Blakeney was dragged, somewhat against his better judgement, into accepting those rights, and it described the role of his cabinet ministers in persuading him so to do.

[…]

Ms. Bryden: That is not true. But I will deal with that later.

They destroyed the inclusion in the charter of rights without an override of some of the most important areas of that charter, namely, the ones dealing with women, who represent about 52 per cent of the population, and the handicapped, who had to fight to get themselves included in the draft resolution during the hearings of the parliamentary committee.

In the override, they included such fundamental freedoms as freedom of assembly, freedom of speech and some other very important freedoms to all Canadians. They included in the override legal rights, the right to habeas corpus, to a fair trial and to be presumed innocent until proved guilty — all very fundamental freedoms, which were intended when they were put in the charter to guarantee to Canadians that they would have rights across the country equal for all Canadians in these fields.

For Ontario to have gone along with that accord indicates it did not consider those rights very important. As far as women’s rights go, the Premier admitted in this House that he did not recall there being any discussion on women’s rights, certainly not on clause 28. As regards putting the override on the clause prohibiting discrimination on the grounds of sex, namely, clause 15, it is lumped in with the protection against discrimination for people on grounds of race, religion, handicap and so on.

It did not appear that any of these groups was considered more important or less important than others but that they were all considered expendable. It does not sound from what we have heard as if there was any great discussion of whether any of those groups should be subject to override through the federal Parliament or the legislatures of the provinces.

It appears these groups were just dealt out in the poker game. If the provinces that say they do not want those dealt out, particularly in the fields of aboriginal rights and women, had perhaps stood up a little more strongly and prolonged the conference a bit longer, they might not have dealt those out. It seems to me they gave in very quickly on the negotiating and bought an accord at a very high price. I am afraid we may pay for it in the future.

For instance, in the case of women, we have on our statute books a law that presumes to provide equal pay to women. But we know, in its application and enforcement, it has not resulted in equal pay; women are now making about 58 per cent of what men make, and the number of cases that are won under that act is so minuscule that it is not an effective instrument for overcoming cases of discrimination against women or for moving women out of the ghetto occupations, the low-paid occupations, into the higher-paid occupations and overcoming that wage gap.

5:30 p.m.

Let us suppose there is a court decision under section 28, which the women’s lobby managed to get back in after the accord and which says, “Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” If there is a decision that says our equal pay law does not guarantee no discrimination on account of sex, which is in section 15 of the charter, then the province will have to decide whether it wishes to bring in new equal pay legislation which will guarantee the rights and freedoms equally to male and female persons or whether to bring in an override clause which will say that our kind of equal pay law overrides section 15. Then they have five years to renew that law. That is the situation they will be in if the courts should decide our law is against the charter of rights under section 28.

The minister’s quoting of the Premier’s statement that he would never use the override clause is, to my mind, something that one cannot accept. I can see all sorts of cases where the province finds that its present laws are challenged in the courts, and it will put in an override to make sure that those laws stay as they are rather than amend them to remove what the courts have found discriminatory.

I think we have to recognize that the poker game would have worked if some of the groups who were dealt out had not organized tremendous lobbies to win back the rights that were dealt out. I refer particularly to women and native peoples. But both of those groups had organized tremendous lobbies and presented very good briefs to the parliamentary committee back in January and February of this year. They felt they had won their battle then. So it was pretty galling to both groups to find that their hard-won gains, which were made after the parliamentary committee reported, had been lost and that they had to start all over again after the accord.

Members will recall that the parliamentary committee did improve the wording of section 15, bringing in mentally and physically handicapped people and improving the antidiscrimination clause, but it did not bring in the clauses guaranteeing full equality for men and women or the protection of native rights. It was a New Democratic Party amendment, moved by Stanley Knowles in April in Parliament, which brought in those two additions to the constitutional resolution. That was then part of the package that was sent to the Supreme Court.

Those two groups felt, as of last April, that they had won fairly substantial protection for their rights under the charter. Of course, there was no override at that stage. They were extremely disappointed by the actions of the nine Premiers and the Prime Minister in dealing them out again and forcing them back to the position where they have to fight for a definition of what is being protected.

The native peoples have had the word “existing” put in, which may have changed the meaning of the clause they fought for so hard last April.

The women are now subject to the override which also applies to all of those very important areas that I have mentioned — fundamental freedoms, legal rights and discrimination against women, handicapped and people on grounds of race, religion and age.

I am not sure whether what we have is a very good charter of rights worth sending over to Westminster. At least we have section 28 and the native rights added in. If we cannot get rid of the override provisions by further amendments during the next few days they will have to be eliminated ultimately by constitutional amendments after patriation.

But I hope that in the next few days the Premier and the Minister of Intergovernmental Affairs will get in touch with the other first ministers and make one further effort to take out the override clauses, particularly on section 15, which affects so many people and which is the main antidiscrimination clause. I would also like to see them take out the word “existing” from the native rights resolution. If, as the government says, it does not really mean anything or add anything or take away anything, then why leave it in? So although time is running out it is still not too late for an initiative from this government in these fields to improve the final draft that goes to Westminster.

I notice that in his opening remarks the minister said the whole point of the accord was to restore the confidence of Canadians in our political institutions. I very much doubt whether the dealing that went on and the results that came out of the conference that reached the accord have really restored our confidence in our political institutions.

[…]