REPORT: “Reasonable Limits,” Section 1 of the Constitution Act, 1982

2021-10-22 1 Comment

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Date: 2021-10-22 [Updated: 2023-07-25]
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Citation: PrimaryDocuments.ca, Section 1, Reasonable Limits: Compilation of primary documents to assist in interpreting the public meaning of Section 1 of the Constitution Act, 1982, Second Ed. (July 2023).
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SECTION 1 Reasonable Limits

Compilation of primary documents to assist in interpreting the public meaning of Section 1 of the Constitution Act, 1982

Second Edition

July, 2023

Short Table of Contents

Part 1: The Drafting History of the Charter of Rights and Freedoms Pertaining to Section 1’s Public Meaning
Part 2: The Primary Record (Debates, Papers, Committees…) Pertaining to Section 1’s Public Meaning

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

Guarantee of Rights and Freedoms

Rights and freedoms in Canada

Section 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.

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 1’s Public Meaning

Drafts of the Charter of Rights and Freedoms:

January 8, 1979: Canadian Charter of Rights & Freedoms, Federal Draft, tabled at Meeting of Officials on the Constitution, (January 11-12, 1979)
January 22, 1979: Proposed Charter of Rights & Freedoms, Ontario Draft tabled at the Continuing Committee of Ministers on the Constitution (January 22-24, 1979)
October 17, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Continuing Committee of Ministers on the Constitution (October 22-23, 1979)
November 5, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Meeting of Officials on the Constitution (November 15-16, 1979)
July 4, 1980: Rights and Freedoms within the Canadian Federation, Discussion Draft, Tabled at the Continuing Committee of Ministers on the Constitution (July 8-11, 1980)
August 22, 1980: The Canadian Charter of Rights and Freedoms, Federal Draft, Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)
August 28, 1980: Charter of Rights and Freedoms, Report to Ministers by Sub-Committee Officials [Provincial Draft], Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)
September 3, 1980: The Charter of Rights and Freedoms, Revised Discussion Draft, Federal, tabled at the Federal-Provincial First Ministers’ Conference (September 8-12, 1980)
October 2, 1980: Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada
January 12, 1981: Draft submitted to the Special Joint Committee on the Constitution of Canada
February 13, 1981: Draft Tabled in House of Commons from the Special Joint Committee on the Constitution [Final Report]
April 23, 1981: House of Commons Draft, used in Reference Re: Resolution to Amend the Constitution
November 18, 1981: House of Commons Draft
November 24, 1981: House of Commons Draft
November 26, 1981: House of Commons Draft
December 2, 1981: House of Commons Draft & Vote

Statutes and International Agreements:

1960: An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms (The Canadian Bill of Rights)
1978: Bill C-60: An Act to amend the Constitution of Canada

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Drafts of the Charter of Rights and Freedoms

January 8, 1979: Canadian Charter of Rights & Freedoms, Federal Draft, tabled at Meeting of Officials on the Constitution, (January 11-12, 1979)

5. The provisions of this division, which may be cited as the Canadian Charter of Rights and Freedoms, set forth rights and freedoms that, in a free and democratic society, must be assured to the people and that are consistent with Canada’s recognition of the standards proclaimed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Fundamental Freedoms

[…]

(2) The manifestation or exercise of the freedoms declared by this section may be made subject only to such limitations as are reasonably justifiable in a free and democratic society in the interests of national security, public safety, order, health or morals or the rights and freedoms of others.

[…]

Legal Rights

[…]

(2) In time of serious public emergency, the existence of which is officially proclaimed through the invocation of the War Measures Act or by specific reference to this subsection, the rights mentioned in this section other than the right to life and those mentioned in sub-paragraphs (d) (ii) and (e) (v) and paragraphs (h), (i) and 0) may be derogated from to the extent strictly required by the circumstances of the emergency.

[…]

Mobility Rights

[…]

(3) The rights declared by this section may be made subject only to such limitations as are reasonably justifiable in a free and democratic society in the interests of national security, public safety, order, health or morals or where there exist overriding economic or social considerations.

Property Rights

[…]

(3) The rights declared by this section may be made subject only to such limitations in addition to those referred to in subsection (2) as are reasonably justifiable in a free and democratic society in the interests of national security or public safety, order, health or morals.

(Source: Meeting of Officials on the Constitution, Canadian Charter of Rights & Freedoms, Federal Draft, [January 8, 1979] (Ottawa: 11-12 January, 1979). Click HERE)

—–o0o—–

January 22, 1979: Proposed Charter of Rights & Freedoms, Ontario Draft tabled at the Continuing Committee of Ministers on the Constitution (January 22-24, 1979)

Fundamental Freedoms:

[…]

(2) The manifestation or exercise of the freedoms declared by this section may be made subject only to such limitations prescribed by law as are reasonably justifiable in a free and democratic society in the interests of national security, public safety, order, health or morals or any rights and freedoms of others.

Legal Rights

[…]

(2) In time of serious public emergency, the existence of which is officially proclaimed by or pursuant to a law enacted to deal with such circumstances or by a law specifically referring to this subsection, the rights mentioned in this section other than the right to life and those mentioned in subparagraphs (1) (d) (ii) and (1) (c) (v) and paragraphs (1) (h), (i) and (j) may be derogated from to the extent strictly required by the circumstances of the emergency.

(Source: Continuing Committee of Ministers on the Constitution, Proposed Charter of Rights & Freedoms, Ontario Draft, Doc 830-70/042 (Vancouver: 22-24 January, 1979). Click HERE)

—–o0o—–

October 17, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Continuing Committee of Ministers on the Constitution (October 22-23, 1979)

Fundamental Freedoms

[…]

(2) The manifestation or exercise of the freedoms declared by this section may be made subject only to such limitations prescribed by law as are reasonably justifiable in a free and democratic society in the interests of the defence of Canada against subversive or hostile acts, public safety, order, health or morals or the rights and freedoms of others

(Source: Continuing Committee of Ministers on the Constitution, Rights and Freedoms within the Canadian Federation Federal Draft , [October 17, 1979] (Halifax: 22-23 October, 1979). Click HERE)

—–o0o—–

November 5, 1979: Rights and Freedoms within the Canadian Federation, Federal Draft, tabled at the Meeting of Officials on the Constitution (November 15-16, 1979)

Fundamental Freedoms

[…]

(2) The manifestation or exercise of the freedoms declared by this section may be made subject only to such limitations prescribed by law as are reasonably justifiable in a free and democratic society in the interests of the defence of Canada against subversive or hostile acts, public safety, order, health or morals or the rights and freedoms of others.

Legal Rights

[…]

(Source: Meeting of Officials on the Constitution, Rights & Freedoms within Canadian Federation, Federal Draft, [November 5, 1979], Doc 840-177/005 (Toronto: 15-16 November, 1979). Click HERE)

—–o0o—–

July 4, 1980: Rights and Freedoms within the Canadian Federation, Discussion Draft, Tabled at the Continuing Committee of Ministers on the Constitution (July 8-11, 1980)

Fundamental Freedoms

[…]

Legal Rights

[…]

(3) In time of serious public emergency threatening the life of the country, the existence of which is officially proclaimed by or pursuant to a law enacted to deal with such circumstances or by law a law specifically referring to this subsection, the rights mentioned in this section other than the right to life and those mentioned in subparagraphs (1)(d)(i) and (ii) and (1)(e)(i)-(iii) and (v) and paragraphs (1)(f)(g)(h)(i) and (j) may be derogated from to the extent strictly required by the circumstances of the emergency.

Mobility Rights

[…]

(3) The rights declared by this section may be made subject only to such limitations prescribed by law asa are reasonably justifiable in a free and democratic society in the interests of national security, public safety, order, health or morals.

Property Rights

[…]

(3) The rights declared by this section may be made subject only to such limitations prescribed by law in addition to those referred to in subsection (2) as are reasonably justifiable in a free and democratic society in the interests of national security or public safety, order, health or morals.

(Source: Meeting of the Continuing Committee of Ministers on the Constitution, Rights and Freedoms within the Canadian Federation, Discussion Draft. Tabled by the Delegation of the Government of Canada, 4 July 1980, Doc 830-81/027 (Montreal: 8-11 July 1980). Click HERE)

—–o0o—–

August 22, 1980: The Canadian Charter of Rights and Freedoms, Federal Draft, Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)

1. The Canadian Charter of Rights and Freedoms recognizes the following rights and freedoms subject only to such reasonable limits as are generally accepted in a free and democratic society.

(Source: Continuing Committee of Ministers on the Constitution, The Canadian Charter of Rights and Freedoms, Federal Draft , [August 22, 1980] Doc 830-84/004 (Ottawa: 26-29 August 1980). Click HERE)

—–o0o—–

August 28, 1980: Charter of Rights and Freedoms, Report to Ministers by Sub-Committee Officials [Provincial Draft], Tabled at the Continuing Committee of Ministers on the Constitution (August 26-29, 1980)

1. The Canadian Charter of Rights and Freedoms recognizes the following rights and freedoms subject only to such reasonable limits as are generally accepted in a free society living under a parliamentary democracy.

(Source: Continuing Committee of Ministers on the Constitution, Charter of Rights, Report to Ministers by Sub-Committee of Officials, Annex [August 28, 1980], Doc 830-84/031 (Ottawa: 26-29 August, 1980). Click HERE)

—–o0o—–

September 3, 1980: The Charter of Rights and Freedoms, Revised Discussion Draft, Federal, tabled at the Federal-Provincial First Ministers’ Conference (September 8-12, 1980)

1. The Canadian Charter of Rights and Freedoms recognizes the following rights and freedoms subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

(Source: Federal-Provincial First Ministers’ Conference, The Canadian Charter of Rights and Freedoms, Revised Discussion Draft, Federal, [September 3, 1980] Doc 800-14/064 (Ottawa: 8-12 September 1980). Click HERE)

—–o0o—–

October 2, 1980: Proposed Resolution for a Joint Address to Her Majesty the Queen Respecting the Constitution of Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

(Source: Canada, Parliament, “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” in Sessional Papers (1980). Click HERE)

—–o0o—–

January 12, 1981: Draft submitted to the Special Joint Committee on the Constitution of 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.

(Source: 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 36 (12 January 1981). Click HERE)

—–o0o—–

February 13, 1981: Draft Tabled in House of Commons from the Special Joint Committee on the Constitution [Final Report]

—–o0o—–

April 23, 1981: House of Commons Draft, used in Reference Re: Resolution to Amend the Constitution

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 9470-9471. Click HERE)

—–o0o—–

November 18, 1981: House of Commons Draft

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 12983-13011. Click HERE)

—–o0o—–

November 24, 1981: House of Commons Draft

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 4128-4130. Click HERE)

—–o0o—–

November 26, 1981: House of Commons Draft

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13338-13346. Click HERE)

—–o0o—–

December 2, 1981: House of Commons Draft & Vote

(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13632-13663. Click HERE)

—–o0o—–

Statutes and International Agreements

1960: An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms (The Canadian Bill of Rights)

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

(d) freedom of speech;

(e) freedom of assembly and association; and

(f) freedom of the press.

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to [Emphasis is ours]

(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;

(b) impose or authorize the imposition of cruel and unusual treatment or punishment;

(i) of the right to be informed promptly of the reason for his arrest or detention,

(ii) of the right to retain and instruct counsel without delay, or

(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;

(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or

(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

[…]

6. Section 6 of the War Measures Act is repealed and the following substituted therefor:

“6. (1) Sections 3, 4 and 5 shall come into force only upon the issue of a proclamation of the Governor in Council declaring that war, invasion or insurrection, real or apprehended, exists.

(2) A proclamation declaring that war, invasion or insurrection, real or apprehended, exists shall be laid before Parliament forthwith after its issue, or, if Parliament is then not sitting, within the first fifteen days next thereafter that Parliament is sitting.

(3) Where a proclamation has been laid before Parliament pursuant to subsection (2), a notice of motion in either House signed by ten members thereof and made in accordance with the rules of that House within ten days of the day the proclamation was laid before Parliament, praying

that the proclamation be revoked, shall be debated in that House at the first convenient opportunity within the four sitting days next after the day the motion in that House was made.

(4) If both Houses of Parliament resolve that the proclamation be revoked, it shall cease to have effect, and sections 3, 4 and 5 shall cease to be in force until those sections are again brought into force by a further proclamation but without prejudice to the previous operation of those sections or anything duly done or suffered thereunder or any offence committed or any penalty or forfeiture or punishment incurred.

(5) Any act or thing done or authorized or any order or regulation made under the authority of this Act, shall be deemed not to be an abrogation, abridgement or infringement of any right or freedom recognized by the Canadian Bill of Rights.”

(Source: An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, SC, 1960, c 44. Click HERE)

—–o0o—–

June 20, 1978: Bill C-60: An Act to amend the Constitution of Canada

5. The provisions of this division, which Canadian Charter of Rights and Freedoms, are founded on the conviction and belief, affirmed by this Act, that in a free and democratic society there are certain rights and freedoms which must be assured to all of the people of that society as well as to people within that society individually and as members of particular groups, and which must, if they are to endure, be incapable of being alienated by the ordinary exercise of such legislative or other authority as may be conferred by law on its respective institutions of government.

[…]

25. Nothing in this Charter shall be held to prevent such limitations on the exercise or enjoyment of any of the individual rights and freedoms declared by this Charter as are justifiable in a free and democratic society in the interests of public safety or health, the interests of the peace and security of the public, or the interests of the rights and freedoms of others, whether such limitations arc imposed by law or by virtue of the construction or application of any law.

(Source: Bill C-60, An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters, 3rd Sess, 30th Parl, SC, 1978 (June 20, 1978). Click HERE)

—–o0o—–

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 1’s Public Meaning

1971, Victoria Charter, (HERE)
October 10, 1978, Report Recommendation on Bill C-60 (HERE), p. 14
October 16, 1980, Debate in the House of Commons (click HERE), p. 3752
October 17, 1980, Debate in the House of Commons (click HERE), p. 3801-2
November 12, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 3 (click HERE) pp. 14, 27, 77
November 13, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 4 (click HERE), pp. 47, 58, 92
November 14, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 5 (click HERE), pp. 8), 11, 14, 23
November 17, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 6 (click HERE) p. 28
November 18, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 7 (click HERE) pp. 9, 20, 24, 25, 27, 85
November 20, 1980: Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 9 (click HERE) pp. 45, 58, 63, 129, 137, 149,
November 20, 1980, Debate in the House of Commons (click HERE), p. 4915
November 24, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 11 (click HERE), pp. 32, 33, 38
November 26, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 13, (click HERE) pp. 10, 18, 23,
November 27, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 14 (click HERE) pp. 10, 12, 20, 54, 59, 66,
November 28, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 15 (click HERE) pp. 7, 18, 22, 29
December 1, 1980, Debate in the House of Commons (click HERE), p. 5221
December 3, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 18 (click HERE), p. 25
December 8, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 21 (click HERE), pp. 6, 17
December 9, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 22 (click HERE), pp. 32, 38, 53, 77, 105, 115, 119
December 11, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 24 (click HERE), pp. 13, 45, 51
December 12, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 25 (click HERE), p. 13
December 15, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 26 (click HERE), p. 48
December 16, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 27 (click HERE), p. 87
December 17, 1980, Debate in the House of Commons (click HERE), p. 14181
December 18, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 29 (click HERE), pp. 20, 89, 125, 148, 152, 154
December 19, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 30 (click HERE), p. 39
January 6, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 32 (click HERE), pp. 10, 26, 39
January 7, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 33 (click HERE), p. 110
January 8, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 34 (click HERE), pp. 78, 122, 125
January 12, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 36 (click HERE), p. 11
January 15, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 38 (click HERE), p. 41, 44, 45, 46, 49
January 21, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 42 (click HERE), pp. 23, 36
January 22, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 43 (click HERE), pp. 13, 21, 25, 54
February 17, 1981, Debate in the House of Commons (click HERE), p. 7387
February 18, 1981, Debate in the House of Commons (click HERE), p. 7443
March 13, 1981, Debate in the House of Commons (click HERE), p. 8243
March 18, 1981, Debate in the House of Commons (click HERE), p. 8386
February 23, 1982, Debate in the U.K. House of Commons (click HERE), columns 770-831
March 3, 1982, Debate in the U.K. House of Commons (click HERE), columns 359-374
March 25, 1982, Debate in the House of Commons (click HERE), p. 15807

—————o0o—————

1971: Victoria Charter (HERE)

Art. 1. It is hereby recognized and declared that in Canada every person has the following fundamental freedoms:

Freedom of thought, conscience and religion, freedom of opinion and expression, and freedom of peaceful assembly and of association; and all laws shall be construed and applied so as not to abrogate or abridge any such freedom.

Art. 2. No law of the Parliament of Canada or the legislatures of the provinces shall abrogate or abridge any of the fundamental freedoms herein recognized and declared.

Art. 3. Nothing in this part shall be construed as preventing such limitations on the exercise of the fundamental freedoms as are reasonably justifiable in a democratic society in the interests of public safety, order, health or morals, of national security, or of the rights and freedoms of others, whether imposed by the Parliament of Canada or the legislature of a province, within the limits of their respective legislative powers, or by the construction or application of any law. [Emphasis is ours]

—–o0o—–

October 10, 1978: Report Recommendation on Bill C-60 (HERE)

Recommendation 8

[…] Clause 25 of the Charter serves two purposes. First, it instructs the courts on how to interpret the Charter by making explicit that the protected rights and freedoms are not absolutes but may be limited in their exercise or enjoyment in the interest of several aims justifiable in a free and democratic society. In our view the Charter would in any event be read this way by the courts, and the explicit direction to the courts is unnecessary. Coupled with the second purpose of the clause, it is also harmful through overextension. This first purpose should be therefore abandoned.

The second purpose of the clause is to replace section 6 of the Canadian Bill of Rights, which preserves the limitation of liberty by the War Measures Act, allowing for its invocation “upon the issue of a proclamation of the Governor in Council declaring that war, invasion, or insurrection, real or apprehended, exists.” In the Charter the War Measures Act is preserved by implication rather than explicitly.

The case for justifiable limitations on rights by the War Measures Act applies principally to the political rights and freedoms in clause 6 rather than to the legal rights and freedoms of clause 7. Many of the more precise legal protections in clause 7 should not require limitation even in wartime crises. For example, we do not see how the state could ever be justified in imposing cruel and unusual punishment. In our view, any limitations on the protected rights should be exactly spelled out in the Charter. Moreover, the accountability of the Government to Parliament for the invocation and administration of trenching legislation should be established by the Charter.

—–o0o—–

October 16, 1980, Walter Baker, Debate in the House of Commons, p. 3752 (click HERE)

Hon. Walter Baker (Nepean-Carleton): I want to take a look at clause 1 of the bill, if I have a few moments. Clause 1 of the draft bill is the so-called guarantee of rights. It says: The Canadian Charter of Right: and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. Any lawyer or anyone else could drive a freight train through that so-called guarantee of rights.

—–o0o—–

October 17, 1980, Les Benjamin, Debate in the House of Commons, p. 3801-2 (click HERE)

Mr. Benjamin: Mr. Speaker, I am trying to get this finished so I can get to the airport. I will try to keep my remarks under 40 minutes and if he would be good enough to question me then I would be happy to try to answer him.

Yesterday was the tenth anniversary of the imposition of the War Measures Act during peacetime. Ten years ago yesterday my former leader and political mentor—I hope he still is my political mentor—Tommy Douglas, told this House the NDP party did not accept the government’s heavy-handed tactics which could cause a person to be held for 90 days or more without an opportunity to prove he or she did not belong to a subversive organization. He said:

This government now has the power by order in council to do anything it want—to intern any citizen, to deport any citizen, to arrest any person or to declare any organization subversive or illegal.

I am not convinced the present wording of the government’s proposed constitution act would prevent a repeat of this denial of rights. Section one of the proposed charter of rights says:

The Canadian charter of rights and freedoms guarantees the rights and freedoms sol out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

The words “as generally accepted” are a loose definition which could be interpreted in many ways. I hope the government will be willing to review this section when it is before the committee. I wonder why this qualification should apply to the right under section 12:

—not to be subjected to any cruel and unusual treatment or punishment.

[Page 3802]

Would that qualification to which I referred permit a repeat of the disgraceful treatment accorded to Japanese Canadians 40 years ago? Talk about the entrenching of rights in a constitution does not necessarily guarantee one will receive those rights. The counter-example is that in the American constitution, with those rights entrenched, the treatment of the American-Japanese was as bad as, or worse than, that accorded the Japanese in Canada. It took the Americans as long to redress the harm done as it did Canada. I agree the Americans did redress that harm in a better way than we did, in a larger way. But it took them as long, even though those rights were entrenched. So entrenchment by itself does not guarantee one will always receive those rights.

—–o0o—–

November 12, 1980: James McGrath, Roger Tassé, and Jean Chrétien speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 3 (click HERE), p. 14

Mr. McGrath: Surely that makes everything that follows redundant because a free and democratic society would have within it in a parliamentary system freedom of conscience and religion. Ours does; it operates under the practices and conventions and traditions of the British Parliamentary System.

It seems to me that you have fallen into the same trap here as the Canadian Bill of Rights because you are going to exclude all the very commendable rights and freedoms that you have set out in Section 2 of Schedule B. It either means that they apply or they do not apply. What are the reasonable limits as are generally accepted in a free and democratic society.

[…]

Mr. Roger Tassé (Q.C., Deputy Minister): In effect, Mr. Chairman, that Section 1 is meant to bring forward the concept that these rights that are spelled out in the Charter,

[Page 15]

those you have mentioned and the others, Mr. McGrath, are not absolute rights.

If you just take, for example, the freedom of expression, there are limits to the freedom of expression that already are spelled out in the Criminal Code and that will continue and should continue when a Charter of Rights like this is entrenched.

What the Section is meant to do is to bring that concept not only to the legislatures but also to the judges because in effect the judges when they are faced with cases where government action or parliamentary action, legislative action is being tested and being challenged, in effect they have to decide whether limits, restrictions, that may have been imposed, because again these rights are not absolute, are reasonable ones. That is only what Section 1 is intended to do, that in effect the judges, when there are challenges brought before them, wherein effect people would claim that their rights have been unfairly or unreasonably restricted that in coming to a conclusion when they are so challenged that in effect the courts will have to take for granted that there are some limitations that may well be reasonable and legitimate in the kind of society in which we live.

Mr. McGrath: What is the meaning of the word “reasonable”, Mr. Tassé?

Mr. Tassé: That is the test that the Court would have to apply and that is the whole purpose of the Charter of Rights. In fact, when you entrench a charter of rights like this one you are saying that Parliament and the legislature will constrain themselves when they legislate.

[…]

Mr. McGrath: I am saying that your charter is meaningless in the light of what is said in Section 1 of Schedule B when you make it subject to the reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

[…]

Mr. Chrétien: I just want to say that we have a Charter of Rights but this text is a limit; it is an indication to the court how to interpret the charter in relation to the different legislation because if you do not put those words there it could lead to all sorts of change by the courts that will not give them any limits of interpretation. As said by my Deputy Minister there is some legislation that has been well established in the Canadian society that are recognized, and we have to make sure that the courts do not destroy all the previous work of the evolution of our society. Otherwise we will be in great legal difficulty, so they will have to apply the test of reasonableness in their decisions. I do think the Charter of Rights has its own limits, as you will find out when you are studying it, section by section.

Svend Robinson & Jean Chrétien, p. 27

Mr. Robinson: […] I want to ask the Minister in particular about clause one of this proposed Charter of Rights and Freedoms because I suggest that in its present wording it is a gaping hole in the Charter which really makes the alleged rights and freedoms which are supposed to be protected completely illusory; and in fact if this section one is permitted in its present form that in many ways we will be in a worse position in this country than had this particular Charter not been implemented.

Mr. Minister, first of all with respect to clause one I would like to ask you who would determine what is generally accepted as a limitation on these rights and freedoms, and what test would they apply? Would it be a numerical test?

Mr. Chrétien: It will be the court who will decide. The way I understand the courts to operate, the precedents will determine the next move. It will be the court because we are not giving them other tests than these.

Mr. Robinson: How will it be determined what is generally accepted? Will that be in terms of numbers, if the majority of Canadians accept particular limitations? Would this be your understanding of that provision?

Mr. Chrétien: I do not want to pass judgment for what the court will say but I do think there is some, as I explained earlier, there is some historical situation, trends in society, that they can measure; whether it be in terms of numbers and so on.

Of course, we are putting a charter there for one reason, to protect the minorities against the abuses of the majority. We have improved fantastically over the past 50 or 75 years in Canada in terms of tolerance in our society and so on and they will have the test of what is reasonable in their minds in

[Page 28]

relation to those rights that are there. I do not see them turning back the clock; it will be in terms of progress and in terms of protection.

Senator Austin, John Fraser, Jean Chrétien, Claude Tessier, p. 77

Senator Austin: I would like to take advantage of the fact that you have with you a law officer of the Crown to ask you some questions about interpretation in the Charter.

[Page 78]

One of the questions I would like to ask you relates to question 1. When you refer to reasonable limits as are generally accepted in a free and democratic society with the parliamentary system of government, are you going to, or are you putting before the Court necessarily questions of whether certain societies are free and democratic, or whether they have a parliamentary system of government? Does the U.S. have a parliamentary system of government? Are its principles included in the definition of paragraph 1?

Mr. Fraser: We cannot understand the question either.

Mr. Chrétien: No, no, I am asking him to answer the question. You wanted to have his advice.

Mr. Tessier: Mr. Chairman, I think it is the assumption that the Courts would interpret that in the context of a system like the Canadian system. The reference to a parliamentary system of government, I think, was deliberate, to refer to the concept of parliamentary sovereignty and the things that go with that. I might say that some of the provinces attach a good deal of importance to this in the discussions on the Charter, the reference to the parliamentary system of government, to indicate to the Court some distinction between our system and the American system. It does not mean that everything that a legislature or parliament does is automatically going to be accepted by a Court as being a legitimate abridgement of the rights in the Charter, because Section 25 specifically indicates that the Court is to strike down laws of parliaments or legislatures that do not comply with the general requirements of the Charter.

Senator Austin: I appreciate that, but it seems to me that the draft of paragraph 1, as you have it, section 1 as you have it really could send the Courts off on, at the request of counsel, on quite a wide ranging and, up until now, quite unusual search into other parliamentary jurisdictions for precedence,

Mr. Chrétien: If I can make a comment on that, I do think that when we discussed during the summer with the provinces this general clause number one, that it was at the insistence of the provinces that we made that qualification there, so that it will not be too strict a proposition of the guarantee of rights and freedoms, that we will restrict too much the activities of, traditional activities of the different levels of government.

It is a very complex problem, and at the insistence of the provinces we put that, I do not know how to describe it, but, not a caveat. but this kind of limitation clause so that it will not limit too extensively the power of the provincial legislature, and of course the National Parliament, to legislate what is considered legitimate in a free and democratic society.

—–o0o—–

November 13, 1980: Roger Tassé, Coline Campbell, & Jean Chrétien speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 4 (click HERE), p. 47

Mr. Tassé: Yes, Mr. Chairman. Pursuant to Section 1 it would be possible for Parliament or the Legislature to impose limits or restrictions on the right of association or freedom of association.

As I pointed out yesterday to the Committee, these rights that are spelled out in the Charter are not absolute rights and they are susceptible to restrictions and limitations.

For example, in 1962, the Supreme Court held that at the time where we had a similar freedom set out in the Canadian Bill of Rights, the Supreme Court held that dissolving the SIU would not violate the right of association since the union was engaged in illegal acts infringing the rights of others, so it held that in that case it was a legitimate exercise on the part of parliament to restrict the freedom of association that the SIU, the union in that case, had claimed should be recognized.

Miss Campbell: I agree there were illegal activities in that particular case, but going to a broader area where you have a group of fishermen, let us say, asking for a province to pass legislation so that they can organize and have collective bargaining, and one would assume that they did not have it at common law, and that this particular section will give it to them unless a province would strictly abridge it. Take it away.

Mr. Tassé: I think in effect this charter would not go as far as to require that there be federal or provincial legislation that would allow for recognition of the right, but the legislation that exists would have to be legislation that would allow for the expression of that right to take from and take place without undue limitation. So in effect if the objectives are of …

Miss Campbell: This would supercede any provincial legislation?

Mr. Tassé: Well, I am not sure that I am going that far. I think what I am saying, I think that provincial legislation and

[Page 48]

federal legislation would have to be read as against this freedom that the charter would recognize of two individuals to organize themselves and associate for that purpose.

As long as the purpose of the association is a legal one, is a legitimate one, the legislature or the parliament could not intervene to restrict them.

Miss Campbell: It comes from the common law, the common law that we have established from Great Britain?

Mr. Tassé: Well, under the common law, I suppose in effect it would be possible for parliament or the legislature to restrict the rights in whatever way, shape or form, but that is the purpose of a charter. It is to in effect entrench and constrain the exercise of legislative authority of the parliament and the legislatures so that they could not be taken away or unreasonably tampered with.

Miss Campbell: How far does this right at common law go? Does it give the right to strike and the right to lock-out until it is taken away? Now, I am not sure, I think the right to strike is usually given.

Mr. Chrétien: We can give you an answer on that.

Miss Campbell: Well, I am sure I can say that one more group of people at least in the east who would like to see this in order to have the right to go to freedom of association without having to ask to have legislation so that they can associate.

I mean, my understanding of the Maritime Fishermen’s Union is that they would like to have the right to form a union. Even though they say Maritime Fishermen’s Union, there is an element there of discrepancy.

But their provincial legislatures must given them the right. This gives them the right. If I take freedom of association, as given it common-law, the right to collective bargaining on the part of any group, they do not need to seek any further than this law, and then it would be up to the provincial governments to abridge that right.

Mr. Tassé: Well, I would doubt that they would be happy with just the possibility of their being in a position to exercise their common law right. I think we have seen that in almost all jurisdictions, there has been a need for the organization of relationships between the employers and the employees, so that, you know, there will be a framework within which these relationships will take place and this Charter here does not go that far as to provide for that, but it says that the right exists, but the implementation of it and the organization of relationship, for example, in the labour field is something that would be either the responsibility of Parliament or the Legislature, but they are the ones that will decide how these relationships could take place, and what happens if certain things happen. If there is a strike, for example, in the work condition, it could place that would be recognized as a legal act.

Miss Campbell: In other words, they would abridge it they will abridge the basic common law.

Mr. Tassé: Well, it would give a statutory constitutional basis for these rights, but it is not the full answer to all of the…

[Page 49]

questions that may arise in the context of employer and employee relationships.

Miss Campbell: Well, then you go back to the Seafarer’s case where it says the activities were illegal.

Mr. Tassé: And for that purpose, the Supreme Court in effect recognized that what Parliament had done in terms of restricting the rights of that association to exist was valid because of the purpose that the Union had set for itself, it was recognized as being in effect, unwarranted, if not illegal.

Miss Campbell: Yes.

Svend Robinson & Jean Chretien, p. 58

Mr. Robinson: […] I have one final question, Mr. Chairman, if I may. The Minister has referred, as one of his guidelines, to the International Covenant on Civil and Political Rights. I would like to turn to Section 1 of the proposed Charter of Rights and go to a question that I asked earlier, which is, that as it stands now, Section 1 of the proposed Charter of Rights violates Canada’s obligations under the International Covenant on Civil and Political Rights.

The Minister will be aware that Walter Tarnopolsky, who is a distinguished Canadian civil libertarian and a member of the United Nations Human Rights Committee and of the Canadian Human Rights Commission has expressed serious concern about this wording; the Civil Liberties Association themselves; the Canadian Human Right Commission and others have expressed concern about the present wording of this, in that it violates the International Covenant on Civil and Political rights.

Mr. Minister, why should it be that the anti-discrimination rights, the rights to be protected from discrimination on the basis of religion, age, sex, and so on, which are protected as being fundamental in the International Covenant on Civil and

[Page 59]

Political Rights, why should they be subject to what is generally acceptable in a free and democratic society; because if that were the test, then surely it would be possible to have the abuse that we have had of Canadians of Japanese origin during and after World War II who were interned and whose property was confiscated. Frankly, I believe the Prime Minister himself has indicated that this was a blot on the history of Canadian society.

Mr. Minister, that kind of thing would be permitted under Section l, because it would permit the violation of the International Covenant on Civil and Political Rights, and l would hope the Minister would be prepared to indicate today that you are open to an amendment which would at least bring this section into conformity with our obligations under the International Covenant on Civil and Political Rights which your Deputy Minister indicated yesterday should guide the courts in their interpretation of this section in an event?

Mr. Chrétien: You know, Mr. Robinson, that is a very difficult question, because we had a very long debate this summer with the provinces on the application of the Charter of Rights.

We did not come to any formal agreement with the provinces, but that was the main topic of discussion among officials and Ministers during the summer. And as the Administrator of the Criminal Code—the Attorney General and so on—we put that rider, if I may use that term, interpreting the charter. It was very much in the light of the discussions we had with the provinces, that this was more acceptable to them than just having a Charter of Rights of full application, using the term in the traditional way.

Speaking for myself, I can say that we are very strongly committed to having a Charter of Rights in Canada and we would like to have one which is as effective as possible; but at the same time, we had to take into consideration the views of the provinces and that is the reason why, eventually, we have accepted a reasonable limit which is generally accepted in a free and democratic society with a Parliamentary system of government. It was the general orientation and guidance given to the courts to interpret this charter, and it was acceptable to the participants of the summer conference in relation to a Charter of Rights, if adopted; and that is why it is there.

Now, if you are telling me that I should bypass the views of the Attorney General on that matter and just impose strictly and simply a Charter of Rights without any help to the courts as to interpretation, then you are asking me to take a hell of a big step.

Mr. Robinson: No.

Mr. Chrétien: I am telling you why it is there.

Mr. Robinson: You are already bound Mr. Minister, by the provisions of the Covenant on Civil and Political Rights, and that applies to the provinces as well as to the federal government.

Mr. Chrétien: But that was not the view as was expressed or understood during the summer. But I will look into the matter.

[Page 60]

The problem is that I am telling you the background as to why Clause 1 is drafted that way. Again, it might well be, that I have been too flexible, I guess.

Svend Robinson, Jean Chretien, & Roger Tassé p. 92

Mr. Robinson: A point of order, Mr. Chairman. I am sorry, Mr. Chairman. I am sorry to raise another point of order, but I believe, again, it is important the record is inaccurate and I believe the Minister should correct a statement which he made earlier with respect to Section 1, which is what I have called the “Escape Clause” in the Charter of Rights, referring to the reasonable limits as are generally accepted. I pointed out the weakness of that test. The Minister then came back and said, well, there is reasonable limits required.

Now, I want the Minister to confirm that in fact, at least in the French version of this, there is no such thing whatsoever in Section 1.

Mr. Chrétien: I would check that.

Mr. Robinson: The Deputy Minister has indeed confirmed that, Mr. Minister. I believe the Deputy will confirm that.

Mr. Tassé: Well, I can confirm that the word “reasonable” is not shown in French. I think this is one where we will need to have a second look at the consistency between the French and English text.

—–o0o—–

November 14, 1980: Gordon Fairweather (Chief Commissioner of Canadian Human Rights Commission) speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 5 (click HERE), p. 8

Mr. Fairweather: We are troubled by the language of Clause 1 which, in its present form, raises fundamental doubts about just how serious the commitment is to reform. Those are strong words but you will hear them, I am sure, again and again from witnesses who come before this Committee. The language used departs from that to be found in domestic constitutions of many modern states but what is even more significant is it departs from the European Charter and the international Bill of Rights ratified by Canada, because the language in Clause 1 is unique, it has never been tested. On the other hand, jurisprudence is building up which explains the language of other domestic and international charters. It is in our opinion foolish to turn our backs on a useful body of jurisprudence.

As well, the language seems to us to be dangerously broad. We know you will seriously consider recommendations for a more careful wording of Clause 1.

Jake Epp & Gordon Fairweather, p. 11

Mr. Epp: […] Mr. Fairweather, what I would like to do from looking at materials that you have provided earlier, is take you to your concern of Section 1 of the proposed resolution. At the bottom of your presentation as well as in the accompanying documents you stress your concern about Section 1. I would like to ask you from your perspective if the clause remains essentially in the form it now appears what are the technical consequences of that clause in relation to the protection of rights and freedoms?

Mr. Fairweather: They are so serious that I could not imagine this Committee letting Section l go unamended, That section as drafted would challenge, in my opinion, the rest of the charter, and I suspect somebody is going to be getting an amendment.

It is, as I said, turning our backs on the international and national jurisprudence, and it is very broadly drafted. Why we do not use the language that is well accepted now and has been ratified by Canada, for the life of me I have no idea.

This is a strong statement but I have strong feelings. I am absolutely committed to the entrenchment and the patriation and the goals. They are wonderful goals for this country at last but why not go for something better.

Mr. Epp: From your experience as a Commissioner of the Human Rights Commission, could you give us examples of if this proposed resolution had in fact been in effect with the prohibitions in Section 1, can you give us some specific examples of the restrictions it would have given or caused both to rights and freedoms and also to the Commission?

Mr. Fairweather: Yes. One was given last night, if I know correctly, by the Minister of Justice for Canada. It might be that generally accepted standards in this country for mandatory retirement, the anti-discrimination part having to do with age, could be challenged and rendered meaningless as a reform mechanism, because the generally accepted standards now are quite illiberal, if I may use that word in this place.

[Page 12]

The generally accepted standards for Canada are to push people out at certain ages, I greeted this charter with excitement when I saw that the Government of Canada had included age, but when I see the language of Section 1, I wonder.

Another message that surely cannot be forgotten is that the generally accepted standards in Canada in 1940 and 1941 were to take Canadians whose offence was that they were of Japanese origin.

In the Wellington Street Archives last night while you were doing something else I went to the festival of the 100th anniversary of the Chinese in Canada. They came to build the railway and I am as shocked as I know senators and members are to remember that people who are enshrined and rightly, in our history were perpetrators of the Chinese Exclusion Act, the Chinese $50 a head tax act. The Chinese people in this country were not allowed to vote in a province I think until after the Second World War. It was Mr. Diefenbaker who gave the Native peoples the right to vote in the late 1950s.

I am not saying that a government that follows this one would, but it could, because those were I guess until reform came the accepted standards.

This document is to be entrenched, enshrined, as a statement to the people who have their loyalty to Canada.

Mr. Epp: Do I understand you correctly, sir, that if the document before us were to be enshrined, entrenched, that an incident like Canadians of Japanese origin and the removal of these people from various parts of Canada, their prohibition of freedoms at that time, that in fact that kind of action would still be possible under the charter in its present form.

Mr. Fairweather: I think, Mr. Epp, my duty is to warn you, and I have given some examples, age and these other offensive matters could be put in jeopardy. I am not saying they will but they could.

I think most of this charter is really a superb piece of work, but I cannot see why Canada wants to turn its back on accepted international standards and language that has been adjudicated. That is why I am being a bit fussy. It clouds the rest of a noble document.

Svend Robinson & Gordon Fairweather, p. 14

I wonder if you could confirm that unless this Section is indeed amended that we would in fact be in violation of our requirements under the International Covenant on Civil and Political Rights and indeed, because we have signed the optional protocol, that another state could indeed take us before a tribunal of the United Nations to complain of that violation.

Mr. Fairweather: Section 1, indeed that would be my opinion. You put it very well.

[…]

Mr. Robinson: I would also like to ask you with respect to the question that was touched upon by Mr. Epp and also initially raised by yourself, and that is the actions that were taken during and immediately after World War II with respect to Canadians of Japanese origin.

Would you indeed confirm that it is at least very possible that under the charter as it is presently worded in view of the fact that it could be argued that that action was “generally accepted” at that time, that that kind of action would indeed be permitted under Section 1 as it is now worded.

Mr. Fairweather: Section 1 raises that danger.

David Crombie & Gordon Fairweather, p. 23

Mr. Crombie: Thank you, sir. My second question relates to Section 1, which I understood at the outset from your remarks to be of considerable concern to you, and I have forgotten your words, but I think you regard the Charter of Rights as seriously flawed, those are the words I recall, in relation to Section 1.

I wanted to bring to your attention something which may well have already been brought to your attention, and that is a letter from a fairly well-known lawyer who takes civil liberties and civil rights cases in Toronto, Clayton Ruby. Mr. Ruby is so exercised by that portion of Section 1 which reads that the Charter of Rights and Freedoms will be in fact limited by:

reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government.

Mr. Ruby regards that limitation on the application of the Charter of Rights and Freedoms as so strong as to render the charter, in his words, “useless”. I wonder if you find yourself holding this same view or a similar view as Mr. Ruby?

Mr. Fairweather: Well, I am in the dilemma of being so anxious for an entrenched Bill of Rights and for this to be laid to rest as a national preoccupation of Canadians, this issue, but I would not go so far as Mr. Clayton Ruby, an ally in many causes with the Canadian Human Rights Commission.

If I may go back to the Kennedy speech, we do not want to hazard everything—I cannot imagine that when this Committee rises and reports to Parliament that this Clause 1 will be in its present form. I would be absolutely astounded. You are reasonable ladies and gentlemen here that will want to advise the Government of Canada your view of how serious this will

[Page 24]

I am not going to write to the Globe and Mail, but of course I have access that Mr. Ruby has not, here I am.

Mr. Crombie: Well, we expect that we will have Mr. Ruby here.

Mr. Fairweather: I do not want to think that you throw the whole thing out. I would not want to think that Parliament gives its imprimatur on this bill with Section 1 in its present form.

Mr. Crombie: So that it is clear that Section I in its present form, if not useless, in Mr. Ruby’s phrase, is seriously flawed in your phrase?

Mr. Fairweather: It is seriously flawed, and I just cannot believe it is going to be the final enunciation of the principle.

Mr. Crombie: Would you regard that section, and I will not belabour the point, but would you regard that portion of Section 1 which limits the charter, would you regard that as something that directly affects Section 25?

Mr. Fairweather: It affects the whole charter. That is why we are worried.

Mr. Crombie: I understand that, sir.

Section 25, Mr. Commissioner, deals with the power of the courts. It says:

25: Any law that is inconsistent with the provisions of this Charter is, to the extent of such inconsistency, inoperative and of no force or effect.

That is the power of the court to say: Look, you are offending the Charter of Rights. My question is: Is Section 25 overcome by the limitation contained in Charter 1 in your view?

Mr. Fairweather: Of course it is.

Mr. Crombie: Thank you very much.

Mr. Fairweather: And I would be very surprised if any draftsman said it was not. I am not a very good lawyer. . .

Mr. Crombie: I am not one at all.

—–o0o—–

November 17, 1980: Senator Tremblay & Max Yalden (Commissioner of Official Languages) speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 6 (click HERE), p. 28

Senator Tremblay: […] are the limits mentioned in Section 1 whatever may be the individual linguistic rights mentioned elsewhere in the Charter, embarrassing for you as Commissioner of Official Languages.

Mr. Yalden: Mr. Chairman, broadly speaking this part of the first section embarrasses me a little, not necessarily as Commissioner of Languages, but as a citizen reading the text, I do not understand it very well. I find it so broad that whatever it says does not represent in my view a requirement for a legislature who should guide the courts very clearly, very explicitly.

If it is the case, it seems to me that this section should be more specific, not stricter than it is.

I have followed the discussion here in the Committee, and I said several times tonight I am not a lawyer, consequently, I cannot really express a categorical opinion.

It is embarrassing for me for very broad reasons.

As for the linguistic aspect, would the linguistic rights mentioned in Sections 16 to 23 be affected by this short paragraph? I really could not give you an answer, precisely, because I find these words:

subject only to such reasonable limits as are generally accepted in a free democratic society with a parliamentary system of government so vague that I do not know what they mean. If I knew, I would answer you.

I must admit that I see no threat in these words, but except…

Senator Tremblay: Except for the uncertainty.

Mr. Yalden: Inasmuch as uncertainty is a threat, yes Mr. Senator.

—–o0o—–

November 18, 1980: Professor Walter Tarnopolsky (President, Canadian Civil Liberties Association), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 7 (click HERE), p. 9

Well, the clause that, in our opinion, is most important to change, perhaps drop altogether if one cannot change it sufficiently, is Section 1.

Section 1 permits Parliament to take away everything that Parliament gives by the rest of the charter. Let me deal with it one by one. Limitations clauses have come to be inserted in international instruments and in Commonwealth bills of right by United Kingdom lawyers since 1950 with the signing of the European Convention on Human Rights, However, none of the limitations clauses, in the international arena, nor, of course in Europe, nor in the Commonwealth, has a limitation clause as wide as this one; and I will deal with it in turn.

Perhaps—and least important, but nevertheless an issue which detracts from the effectiveness of Section 1 are the very last few words, that we are talking about a democratic society with a parliamentary system of government.

Perhaps people wanted to draw a distinction between the presidential republican system and the parliamentary system, and in that way it seemed innocuous.

However, every first year law student could tell you that the fundamental principle of parliamentary government is parliamentary supremacy. Now, I personally think that an entrenched bill of rights is compatible with parliamentary supremacy, and there are examples in the Commonwealth of this being so. Nevertheless, one cannot be unaware of the fact that in 1960 there was considerable debate over the fact that—which continues to this day—parliamentary supremacy means you cannot entrench a bill of rights, and that the last word of Parliament has to override any previous word of Parliament.

Now, I would hope that the transformation of a bill of rights from an ordinary statutory bill of rights into a constitutional one might overcome that; nevertheless, it does raise a possibility for a judge, who is not anxious to change the relationship between the legislatures and the courts, to seize upon that point.

Far more important than that, however, are the terms generally accepted.

I think the most obvious answer to that is it would be very difficult to argue that whatever Parliament enacts is not generally acceptable in that society. I do not know how one could argue that members of this House do not represent what is generally accepted in society.

I, therefore, have no doubt that the treatment of the Japanese Canadians in World War II, that the results concerning Mrs. Laval in 1973, that the Jehovah’s Witnesses in Quebec in the 1940s and 1950s, would all be measures which would be generally accepted in our society. I have no doubt also that this is clause which has to be removed or there really is no limit, and again, it finds no counterpart that I know of in any Commonwealth or international bills.

[Page 10]

Let me suggest that there is another reason why—and probably as important as any of the others—this provision in its form overall makes the charter defective.

The limitations provisions that I have mentioned in the international or domestic scene, make reference to the fundamental freedoms alone; in other words, Section 2 of the proposed charter. They do not apply to the legal civil liberties, the legal rights you have starting in Section 7. Those under any of the international instruments can only be encroached upon in time of emergencies officially proclaimed, and not in peacetime, in normal times.

Now this clause, of course, applies to all parts of the charter in normal times as well as in emergency periods.

What I think is equally important is that even in times of emergency, again the international and domestic instruments I have referred to withhold certain rights from derogation even in those times; in other words, there are nonderogable rights; very quickly, under the International Covenant on Civil and Political Rights, which Canada has ratified and which binds all 11 governments in Canada, one cannot contravene the right not to be subjected to cruel or unusual treatment or punishment; there cannot be discrimination on grounds, for example, of race alone, for that reason; there cannot be restriction upon one’s right to freedom of conscience and religion; perhaps one’s right to manifest religion in common with others, but not the right to freedom of conscience and religion; there is also no right to derogate from the prohibition against retroactive treatment or punishment or against double jeopardy and against rights to an interpreter.

So there are really three categories of rights: those which, by international standards, we have submitted ourselves; those which are nonderogable even in times of emergency or war; and those, like the legal rights which may be encroached upon, but only in emergencies if officially proclaimed; and then the fundamental freedoms which are subject to certain rights.

Finally, what are those limitation clauses? In the International Covenant, the reference is to such laws as are subject to such restrictions as are prescribed by law and are necessary for the purposes of a free and democratic (and, in our case, plural and democratic) society.

Now, it seems to me that the importance of that is that the onus has to be upon the one who argues that there are restrictions, and that has to be put in terms of being either necessary or demonstrably justifiable or demonstrably necessary; but the onus has clearly to be upon the one who argues in favour of the restriction and, which is important, it has to be prescribed by law, because that—and this is as far as I will go into the question of the pluses and minuses of the Bill of Rights; because the most important aspect of the Canadian Bill of Rights is not so much in the invalidation of parliamentary legislation as it is in the control of administrative acts, police acts, and with respect to that the limitations that are provided in international instruments require that they be provided specifically by law.

Svend Robinson & Professor Tarnopolsky, p. 20

Mr. Robinson: You may wish to address that point in your written brief, Professor Tarnopolsky.

I would like to return to Section 1. There has been some suggestion that the inclusion of the words, at least in the English version, although they are omitted in the French version, the inclusion of the words “reasonable limits”, in some way obviates the concern which is being expressed with respect to the sweeping nature of Section 1. I wonder if you would care to comment on whether that has any substantive effect on the fettering of some of the opportunities for abuse of the charter?

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

Professor Tarnopolsky: I think when you have words of some limitation—and I think there could be some argument that, in the absence of words such as “generally accepted,” that a phrase referring to “reasonable limits”, because this is a phrase similar to those used in the Commonwealth Constitutions that the United Kingdom lawyers have given, that that provides a kind of objective assessment and puts a certain onus on one arguing in favour of limitation to prove the necessity.

However, where you join an objective provision such as that with a wide-open provision such as the other, I would suggest that, instead, it detracts from whatever force the objective provision has.

David Crombie & J.S. Midanik (Q.C., Canadian Civil Liberties Association), p. 24

Mr. Crombie: […] In that particular section, you seem to be recommending to the Committee that unless we change Section 1, then in a sense the game was not worth the candle, that the rights that are promised are not delivered.

I want to make sure that that is clear to the Committee. Are you suggesting that unless we change Section 1, then the resolution with respect to civil rights that is before us is either useless or dangerous or both?

The Joint Chairman (Mr. Joyal): Mr. Midanik?

Mr. J.S. Midanik (Q.C., Canadian Civil Liberties Association): Yes, that is our position. Not only that you change Section 1, but that the rest of the charter be changed along the lines we have indicated because we feel that the rest of the charter itself is also defective in many respects. But the major problem deals with Section 1 and if any form of Section 1 is kept so that there be some limitation at all, our position is that it should apply only to Section 2 and not to the rest of the charter.

In other words, that the specific rights in the Charter not be limited at all by any Section 1, but if there be any specific limitations, they apply to Section 2 and any such limitations might well be delineated more clearly, as contained in a number of the international covenants.

So, what we are saying again is that if what you are going to give us is what we have now, what is before us, our position is thanks, but no thanks, we would rather take our chances with what we have.

Ron Irwin, Alan Borovoy (General Counsel, Canadian Civil Liberties Association), p. 25

Mr. Irwin: Now, you have serious difficulty and a great deal of criticism with Section 1, which says

I suggest that if an abuse occurs, then the person who is abused could apply to the courts to see if Parliament has abused that person by legislation and if the courts decide that such abuse has occurred in legislation, and it does not fit in within reasonable limits as are generally accepted in a free and democratic society, then that legislation will be struck down.

Mr. Borovoy: The answer to that is yes but the difficulty is the test. If you are talking about that which is generally

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accepted in a free and democratic society with a parliamentary form of government, you may well be talking about everything that Parliament or the legislatures have said is acceptable and to the extent that you are doing that, then it renders the entire charter a verbal illusion.

Professor Tarnopolsky, p. 27

Professor Tarnopolsky: Mr. Chairman, if I may answer that. I think our position is that you should either fish or cut bait. If you are going to have a bill of rights, make it a bill of rights which cannot be just over-ridden any time that a court is convinced, which we are suggesting would be relatively easy, that the limits are those which are generally acceptable. It would not just be in legislation, because, again, if I could use the Hogan case, I think that it would not be very difficult to convince a court that the practice of the police, namely, how can a lawyer help the chap, let him take the breathalizer, it is probably generally accepted, So that I think the fear of those of our members who support a bill of rights would be that it would be disillusioning, that it would be disappointing for the populace to think that they have a bill of rights which really over-rode inconsistent legislative administrative action to find out it is not. We think that rather than promoting that kind of cynicism, the Parliament should face up to either creating a bill of rights which over-rides or stay with the one which we now have, which we have got some jurisprudence on and there are more cases than just a Drybones case which have been applied with some effect.

Professor Max Cohen (Chairman, Select Committee on the Constitution of Canada of the Canadian Jewish Congress), p. 85

Professor Cohen: […] Section 1 of the Charter is a very strange article. You have had a lot of comment on it. I do not wish to burden you with repetition. We made two points about it, looking at the first page of our brief, We say that Section 1 tends to guarantee charter rights, and freedoms, and at the same time provides justification for the suspension of charter rights during an emergency.

I have a feeling that the draftsmen, when they drafted Section 1, were torn between two conflicting pressures on them intellectually and practically. The pressures were, how to maintain the theory of parliamentary supremacy when introducing a theory of a charter regime. It was an attempt to find some kind of practical, legal, political equilibrium between a charter regime system, on the one side, and a parliamentary supremacy regime on the other, that Section 1 represents.

But then, when you look at it, it is so great an invitation in language such as, “subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”, that any aggressively minded lawyer with an aggressively minded government could ride through that series of gates with very little difficulty and find the charter heavily wrecked en route.

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We feel that is not the way to begin a regime of a charter; it is not the way to start a new system of rights. We solemnly recommend the total elimination of Section 1, because when you go into Section 2 and the rest of the charter you are very specific there. You do not need Section 1.

To the extent that you need emergency powers, you will have them. We recommend that in a new article, Article 28(a) at the end of the brief. To the extent that you want to have an equilibrium between a charter regime and parliamentary supremacy, you must accept the fact that, once you introduce a charter regime, parliamentary supremacy is modified for ever to that extent. That is a plain legal and political fact, and you cannot have the best of both worlds, except in an emergency and we provide for an emergency.

—–o0o—–

November 20, 1980: Svend Robinson speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 9 (click HERE), p. 45

I need only point to a couple of examples. Section 1, to the great surprise of the Deputy Minister of Justice we saw that in the French version of Section 1 there is no reference to reasonable limitations on the clause herein. It has been rushed together. A fundamental concept of criminal justice in this country, the concept of trial by jury in the case of serious offences is not even found in the document and when that was raised with the representatives of the Department of Justice they shrugged their shoulders and said, well, we assumed it was in there. We assumed it was in there.

Lynn McDonald (President, Action Committee on the Status of Women), p. 58

Ms. L. McDonald: The opening section under guarantee of rights and freedoms falls short of the statement of principle we would expect. imprecise wording in the limitations clause could open the way to a variety of interpretations of permitted exceptions. Indeed, the potential for driving a truck through the clause led our participants at the conference to dub it the “Mack truck clause”.

Failure to clarify the guaranteed rights and freedoms by removing the limiting clause would render useless subsequent sections. Therefore, NAC proposes that the general limiting clause be deleted.

If there have to be restrictions on rights and freedoms in time of war these should be specified as well as those rights and freedoms not to be abridged under any circumstances. NAC recommends that the rights and freedoms not to be abridged under any circumstances should include at least the right not to be subjected to any cruel and unusual treatment or punishment and the human right to equality in the law.

Flora Macdonald & Lynn McDonald (President, Action Committee on the Status of Women), p. 63

Miss MacDonald (Kingston and the Islands): […] I would like to look at some of the points which you have raised because, of course, the charter as you say, locks women into the concept of equality which in fact does not exist at all as equality. The first section, Section 1, the general limiting clause. Now, you have recommended that it be deleted; others who have been before the Committee, notably the Human Rights Commissioner, recommended that it be tightened up considerably so that the words “such reasonable limits as are generally accepted” be deleted from it, because of course, it is generally accepted that women are equal and that, as certainly many women realize, just is not so. I am wondering if you would in fact reconsider the recommendation you have made, looking to the fact that the International Covenant on Human Rights has a general statement regarding the rights of men

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and women, and the recommendation Mr. Fairweather made also stated that at the outset of the charter there should be a statement which in fact does guarantee the rights of men and women in a general way, before we get into specifics, before we get down to the nuts and bolts, we in fact make that broad general statement in a positive manner and the suggestion that he made was that right at the very outset should be included: this charter guarantees the equal right of men and women to the enjoyments of the rights of men and women to the enjoyments of the rights and freedoms set out in it.

Now, I wonder if you took that positive approach, whether your group might consider the inclusion of that as something that would strengthen the charter?

The Joint Chairman (Mr. Joyal): Ms. McDonald.

Ms. L. McDonald: Mr. Chairman, we have recommended something similar to that in saying that there should be a positive statement of equality as a goal to be worked at, that this is a positive achievement for society. I think we would very much welcome a general statement at the beginning specifying equal rights between women and men. I do not know that we would be happy with just tightening up this other wording about the qualifications. The “generally accepted” qualification makes women very nervous . . .

An hon. Member: Hear, hear.

Ms. L. McDonald: I think for reasons similar to what Mr. Fairweather and other witnesses have raised regarding the treatment of Japanese Canadians. It was within my lifetime that married women were thrown out of the Public Service on marriage. The Stella Bliss case shows how unacceptable women in the labour force are if they are pregnant or if they have very young children. We cannot take as generally accepted all of the rights and freedoms that we would want to have. There are still people that would argue that women do not have a right to jobs on the same basis that men have that right. So we would certainly want that to be in there very strongly.

Mary Eberts (Legal Counsel, Advisory Council on the Status of Women), p. 129

Ms. M. Eberts: […] We are gravely concerned about Section 1 as have been many witnesses that have appeared before this Committee. We in our labours to secure improvements to Section 15 and some of the other parts of this charter have had the eery feeling that no matter how successful we might be to strengthen the guarantees in Section 15, the work of all of us would be fruitless if we did not secure some restriction in the sweeping ambit of Section 1, and it is for that reason that we raise it in the context of our discussion of guarantees for women.

The section states that the guarantees are subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. Our discussion of this Section begins on page 24 of our brief in English, page 27 of our brief in French. The exception is a flat contradiction of the whole idea behind a charter of rights. A limitation which is generally accepted in a society with a parliamentary system of government is essentially a limitation which has the acceptance of a majority. Protection of minorities against the actions of the majority is the very cornerstone of our civil liberties and it was enunciated as such by John Stewart Mill when he cautioned that we should guard against the tyranny of the majority.

To say that we will limit our liberties in ways that have the majority’s approval from time to time is to say that our charter of rights is hollow. A court may have to assess under Section 1 whether a particular limitation on our liberty that has been imposed by a legislature is permissible. Any piece of legislation limiting our liberty will have to have had majority approval of a legislature so you see the hopeless contradiction in which the courts will find themselves. Is the single judge, are five judges, are nine judges appointed and secure for life to say that their wisdom about what is generally acceptable in a parliamentary democracy is the more secure guide for our nation than the wisdom of an elected parliament and the majority thereof?

We can predict two results, and they are alternatives: one is that the courts will be so awed by the task in front of them of

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telling a majority in a parliament and a free society that it is unparliamentary, unfree and undemocratic, that they will simply refuse to strike down any limitations on our rights and freedoms.

In the alternative, they will be very cautious but they will from time to time come out front this caution and strike down a particular limitation on our liberty and it is our view that they will do that when they, the judges, feel that a particular liberty is of particular value and significance. So in effect this clause is truely inviting the courts to second-guess the Parliament and the framers of this constitution about what is important and what are the fundamental liberties.

The only time that a court will risk calling a parliament unparliamentary is when the court values the particular liberty most highly and this charter of rights has not been fought for through the years by our politicians and by our public interest groups in order to carry on so wholesale a transfer of power to the courts. Some significant role for the courts is inevitable and, indeed, it is welcome because the courts have long been the protectors of individual values. However, we feel that Section 1 goes too far.

We surmise that Section 1, at least in part, was included to give Parliament the chance to limit our civil liberties when it is necessary in times of war. apprehended insurrection or other civil emergencies and we suggest that it is in keeping with the democratic traditions of the western world if the limitations that can be placed on our liberties are explicitly spelled out in the charter of rights and not left to something like Section 1.

We suggest that Section 1 be reduced to a simple preamble explaining what the charter of rights is intended to accomplish and that Section 29 include a limitation that will come into effect only in times of war or other times of public emergency and that this section ensure a number of aspects. In time of public emergency which threatens the life of the nation so that it is a serious emergency and the existence of which is officially proclaimed, Parliament may authorize that temporary restriction of certain rights and freedoms to the extent strictly required by the exigencies of the situation but in a manner that the other rights and freedoms set out in this charter will be preserved. We also stipulate that there are some freedoms and rights set out in the charter that need never be interfered with no matter how grave the emergency.

We recommend that the non-discrimination rights never be tampered with and that there never be any derogation from freedom of conscience and religion, the right to vote and hold office, because there are already protections allowing for the suspension of elections which are found in Section 4.

The right to life, liberty and security of the person except when denied by a law duly enacted; the right to being safe from cruel and unusual treatment and punishment; the right to a translator in judicial proceedings should in our view never be suspended because of war or apprehended insurrection, and all the language rights in Sections 16 to 23 need in our view never be suspended because of any kind of civil or martial disability.

Pauline Jewett, Doris Anderson (President, Canadian Advisory Council on the Status of Women) & Mary Eberts (Legal Counsel, Advisory Council on the Status of Women), p. 137

Miss Jewett: Thank you, Mr. Chairman. Well, I guess we still have a problem in this country. However, I will not elaborate. You all know what the problem is. I wonder now if I could just turn momentarily to some of the main points in the order in which you present them. On Section 1, I think we all agree, and I am sure there is a lot of agreement everywhere around this room that it has got to be changed and I thought myself that your suggestion of having it just one sentence, the Canadian Charter of Rights and Freedoms guarantees to every person the rights and freedoms set out in it, and then move on to Section 29, new 2. The limitation part was very good.

I wonder what you would think of adding one clause to that section and the clause would be, after the Canadian Charter guarantees to every person the rights and freedoms set out in it and the equal rights of women and men to the enjoyment of these rights and freedoms, so that you have it right out in front at the beginning.

Ms. Anderson: Well, my reply to that is very positive.

Miss Jewett: Is there any legal problem with that, Mrs. Eberts?

The Joint Chairman (Mr. Joyal): Mrs. Eberts?

Ms. Eberts: Well, I do not think there is a legal problem. I think that from the discussions that we have had among our group concerning possible changes to the Charter, our main difficulty with the language such as you have proposed would be that if that were the only language guaranteeing women’s rights to equality in the Charter, we would find it not strong enough, but if that were part of the general hortatory introduction, then we can see it only as a beneficial addition, as long as it did not have to carry the full freight, as it were.

Coline Campbell & Mary Eberts, p. 149

Miss Campbell: […] On Section 1, it would do away with the limitation. If you go to Mr. Fairweather’s preferred proposal for change, which was 2(1) of his brief. It says:

1.(1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such limits prescribed by law as are reasonably justifiable in a free and democratic society.

It then goes on to talk about:

(2) no limitations on the legal rights or the non-discrimination rights set out in this Charter may be made under this provision.

And the final one that I like here, of course, is:

(3) This Charter guarantees the equal right of men and women to the enjoyment of the rights and freedoms set out in it.

The reason why I say that is if I read that with Section 1(3) and Section 25—perhaps Mrs. Eberts you might want to comment, but that would do away with the type of case that we had in Lavell’s case. It would, in my view, go so far as to make native women equal to native men on reservations.

I wonder if anybody would like to comment on that point?

Ms. Eberts: Well, for my part, I think the comment I made before to Miss Jewett’s question. comes up again here. The formulation in Section 3 of the proposed Section 1 is a valuable addition to a charter of rights.

—–o0o—–

November 20, 1980, David Kilgour & Jake Epp, Debate in the House of Commons, p. 4915 (click HERE)

Mr. David Kilgour (Edmonton-Strathcona): Mr. Speaker, with respect to what the hon. member has just said I would profoundly disagree with virtually all of it. I do not think it is unparliamentary to say it represents nothing but hypocricy from the first word he said to the last. As the Civil Liberties Association pointed out in the committee hearings, what the so-called rights in this charter of rights represent is a diminution in the rights of Canadians. For instance, the first section says:

—subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

As you will be aware, Mr. Speaker, the Civil Liberties Association and a number of other groups have indicated, these words give the government the right to use the War Measures Act and provide other ways in it they can encroach on the freedom of Canadians and say there is a constitutional right to use such measures. Looking through these so-called rights and freedoms I suggest we will hear from all of the thoughtful people appearing before the committee that they represent a reduction rather than an entrenchment of any rights for Canadians.

—–o0o—–

November 24, 1980: N.A. Kinsella (Chairman, New Brunswick Human Rights Commission) speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 11 (click HERE), p. 32

With reference Section 1, we have in our presentation argued that the phrase “generally accepted” be stricken and that the phrase “strictly required” be put in its place. As Professor Humphrey has pointed out, we do not wish to have any limitations solely on the grounds of race, national or ethnic origin, etcetera; and that, again, is in our brief.

Francis Young (Legal Advisor, New Brunswick Human Rights Commission), p. 33

Mr. Young: […] So, in conclusion, Mr. Chairman, we suggest that the drafters and the translators compare the French and English versions meticulously in order to ensure that the two texts correspond.

Particularly, it should be pointed out that in Section 1, “reasonable limits as originally accepted” has been translated by “réserves normalement acceptées” So, the word “reasonable” has not been translated in French. This omission is critical because Section 1 is one of the most important in the charter and “reasonable” is one of the key words.

N.A. Kinsella, p. 38

Mr. Kinsella: Mr. Chairman, I think you will find indeed it was the principles that we were putting forward, and on page 4 the principles that we are putting forward is that the limitations need to be very strict limitations rather than generally accepted ones. And secondly, the principle that as far as the discrimination is concerned that rights would not be limited solely because of the colour of a man’s skin, or because of sex. That is the second principle.

Thirdly, as Professor Humphrey said, in times of emergencies not all of the rights which are generally accepted in the

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world community need or ought to be derogated, like torture or cruel and unusual punishment, et cetera.

—–o0o—–

November 26, 1980: Art Shimizu (Constitution Committee, Chairman, National Association of Japanese Canadians) speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 13 (click HERE), p. 10

Mr. Shimizu: […] The second point I wish to make is the very serious reservations we have with the manner in which Section 1 is presently framed. More specifically the phrase:

. . . only so such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

Its broadness and vagueness can be interpreted to give the government the licence to invoke, for instance, the War Measures Act or any future emergency powers act. It is our view that rather than limiting the rights of individuals and groups on certain occasions, there should be limits put on the definition of what constitutes an emergency. This principle should in some fashion find expression in the constitution. Also, unless the constitution guarantees that the Bill of Rights is to supersede all past, present and future legislation, then ladies and gentlemen, we believe that you are not only condoning the past, you are preparing the way for history to repeat itself.

Bryce Mackasey, p. 18

Mr. Mackasey: […] Mr. Chairman, I would hope in light of the grave concerns that our witnesses have today about Section 1, that the minister be requested to come back to this committee before December 8, preferably the fifth or sixth or so, earlier in any event, so that we can find out in an objective and non-partisan way what he intends to do about Section 1, whether it is to be left in its present form. The present form reflects not communication and dialogue with groups such as your own; it reflects the views of the provincial premiers of this country.

It reflects the findings of the minister in his deliberations across Canada this summer as well as the selfishness of many provincial premiers.

I think Section 1 is defective and has to be improved. I cannot presume to be talking for my party, but certainly I am speaking for myself. So, I am very pleased with the forcefulness with which you have made your points.

Art Shimizu (Constitution Committee, Chairman, National Association of Japanese Canadians) & Donald Munro, p. 23

Before commenting on Section 1, I would just like to leave aside for the moment, making a reservation, so to speak, the question of the appropriateness of submitting a proposal of this nature to another parliament for legitimization; but taking into account the work that Canadian parliamentarians—and the Canadian people—will one day have to do before deciding whether or not to entrench rights in a constitutional document. I leave that as a reservation for my comment.

But since this is a long-term operation, I would like to take advantage of the presence here of the representatives of the National Association of Japanese Canadians, and ask specifically whether it is that portion of Section I which starts:

subject only to such reasonable limits as are generally accepted in a free and democratic society

which gives them cause to pause.

Section 15, for example, which deals with the rights of non-discrimination on the basis of race, national or ethnic origin.

With one or other, you know, not in legal terms necessarily, but bearing in mind the tradition, the story that you have given us which reminds us all of what did happen, would you care to comment on that. I would like to mention this four-year difference on the United States side, because at the time, if I am correct, there was no, strictly speaking, Canadian citizenship; there was a Canadian nationality and that might or might not have had a bearing on the hesitation, if you like, of rehabilitating those Nisei who were interned during the war. I am not sure whether that has a hearing or not, but it might have, and I just enter that as a distinction between the state in the United States where there was a United States citizenship and in Canada where there was, in legal terms, only a Canadian nationality. I would like to come back to the first part, whether it is that particular section which has caused concern on the part of Canadians of Japanese origin.

Mr. Shimizu: It is that portion, yes; because of its looseness it makes ineffective other sections including Section 15. Because of the fact that it is so loose, we wondered if it would hold water.

Mr. Munro (Esquimalt-Saanich): In other words, if I may, Dr. Shimizu, that that “subject only to” is a worry to you unless there is some provision to exclude the imposition of The Emergency Measures Act of whatever nature it might be.

Mr. Shimizu: It says “reasonable limits”; well, to limit this charter that could be broadly interpreted, could it not . . .

Mr. Munro (Esquimalt-Saanich): Subject to the courts. In other words, this is leaving the courts to rule on what is reasonable, what limits are reasonable, one of the dangers perhaps of entrenchment, rather than leaving it with Parliament. Thank you Mr. Chairman.

—–o0o—–

November 27, 1980: Roderick McLeod, Q.C. (Assistant Deputy Attorney General of Ontario), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 14 (click HERE), p. 10

The first is with respect to Section 1 of the Charter. We are respectfully submitting to the members of the Committee that you consider the possible addition of certain words at the end of the existing wording. As members of the Committee are aware, Section 1 is a general section providing that the rights and freedoms set out in the charter are subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. It is our submission that the following words be added to the end of that Section 1, and the words are:

including such limits as are or may be prescribed by statutes which clarify or define such rights or freedoms.

We have pointed out in the brief, on page 3 in the right hand side, that this may well already be envisaged by the existing wording of Section 1, but it is our view that to add it would be to clarify and perhaps would assist in answering the criticisms of some people who suggest that a charter of rights is contrary to the principle of parliamentary supremacy. We respectfully suggest at the same time to add it would not be inconsistent with the concept of entrenching a form of charter of rights with respect to legal principles. It may well be a lesser form of entrenchment, but it is still a form of entrenchment because Parliament could never abrogate or remove a fundamental right or freedom. Most importantly, if I may, members of the Committee and Mr. Chairman, Parliament could at least share with the courts the role of clarifying and defining such rights and freedoms as may be declared in the constitution.

Chief John Ackroyd (Chief Metro Toronto Police), Guy Lafrance (conseiller légiste, Police de la Communauté urbaine de Montréal), & James McGrath, p. 12

Chief Ackroyd: Perhaps Mr. Guy Lafrance could answer the question. He is the person who dealt with Section 1, and it was something that was drafted by him at the Conference of Canadian Chiefs in Montreal in August.

Le coprésident (sénateur Hays): Monsieur Lafrance.

Me Guy Lafrance: Monsieur le président, si on regarde le texte qui est présentement à l’article, on dit:

La charte des droits canadiens et des libertés garantit les droits et libertés énoncés ci-après sous les seules réserves normalement acceptées dans une société libre et démocratique de régime parlementaire.

Si j’ajoute à cela les commentaires qui ont été introduits par mon confrère, M. McLeod, où justement on a suggéré d’inclure une partie de texte

including such limits as are or may be prescribed by statutes which clarify or define such rights or freedoms.

Quant à nous, nous croyons effectivement que cette partie-là, il serait peut-être préférable qu’elle soit incluse dans l’article 1 afin, justement, de bien la libeller, bien la structurer. II est très général, l’article 1. Il est tellement général qu’il pourrait peut-être—je vous dis cela comme un premier jet— avoir pour effet d’empêcher l’application du reste de l’article. Vous avez probablement raison là-dessus. Et c’est quoi, les

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réserves normalement acceptées dans une société libre et démocratique? C’est très, très, très vaste comme tel.

Il y aurait peut-être lieu de regarder la rédaction de l’article 1 mais je dois vous avouer que personnellement nous n’avons pas fait une étude exhaustive de cet article 1 pour vous donner un texte précis que nous aimerions voir dans l’article 1.

Mr. McGrath: What you are saying would still not address the problem you have identified in your opening paragraph on the general philosophy, when you make the statement:

Under the Charter, the individual judge will have the power to overrule Parliament on a number of matters, including such questions as the powers and duties of policemen in the enforcement of the criminal law, and we do not approve of this. In other words, there is really no way that an entrenched Bill of Rights can satisfy you in this particular concern. You either have entrenchment or you do not have entrenchment. You cannot have it both ways

Svend Robinson & Roderick McLeod, Q.C. (Assistant Deputy Attorney General of Ontario), p. 20

Mr. Robinson: If I might just ask one final question Mr. Chairman. I assume Chief Ackroyd would agree totally with that particular submission. If I might just ask one final question; that is on the submission of the Association of Crown counsels. You make a suggestion for Section 1, which with respect, would render totally ineffectual any suggestion that there should be an entrenched charter of rights in this country. Because not only do you accept the present wording of Section 1, weak and inadequate as it is, but you go on to say that the entire charter should be limited to include such limits as are or may be prescribed by statutes, passed by a majority of Parliament, which clarify or defy such rights or freedoms.

Well, Mr. McLeod, with respect, what you are saying is you do not want an entrenched charter of rights. You believe it should be up to Parliament and to provincial legislatures to put any limits they may like, any limits they may choose to define or to clarify any of these rights or freedoms.

Now, it may not matter to you that by Section 1 being limited in that way you are also limiting the other sections; the non-discrimination sections and everything else. You may not care about that because you obviously have not given any consideration to that in your submission. Is it not a fact that what you are saying is that you do not believe fundamentally in entrenchment and it should be up to Parliament and legisla-

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tures to decide what limits are placed, because certainly that is the effect of what you are suggesting in Section 1.

Mr. McLeod: Mr. Robinson, I don’t think one can look at it in quite that black and white way. The suggestion that we are making is one that curiously enough, is not really that dissimilar from what is found in the United Nations Universal Declaration of Human Rights.

Mr. Robinson: Sure it is.

Mr. McLeod: In Section 29 you will note that the document reads that

in the exercise of his rights and freedoms;

that is with respect to the individual;

everyone shall be subject only to such limitations as are determined by law.

A wording which is not precisely the same as what we are suggesting, but a wording that I respectfully suggest is not that much different.

Perhaps more importantly, and maybe I have not made myself as clear as I ought to have, but I do not think that we are saying that there can be no entrenchment at all. We are saying that it is possible to entrench a principle, to put Parliament in a position where it could not take away, let us say, the freedom of religion, but where it could play a role in cooperation with the courts in the future in defining and clarifying what that right of freedom of religion means, surely there has got to be a difference between abrogating or taking something away on the one hand, and merely defining it and evolving it as society changes and as we progress forward in the future years. That is the distinction we see and I would suggest that it is not a position as you would describe it.

Professor Manoly Lupul (Director, The Institute of Canadian Studies), p. 54

We are opposed to the present wording of Section 1 of the Canadian Charter of Rights and Freedoms, which:

guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

In our view, this clause allows too much leeway in allowing the suspension of the charter:

subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

The internment of Ukrainian Canadians during World War I was carried out by a government which apparently felt that it was acting in a manner consistent with the principles generally accepted by Canadian society at that time. This unjust and arbitrary treatment of Canadian citizens was repeated again during World War II in the case of the Japanese Canadians. Even the most fundamental principles of our justice system—the right of habeas corpus and the right to be presumed innocent until proven guilty—were arbitrarily suspended in the internment of Canadians who were allegedly dangerous enemy aliens. It is our view that the limitations clause in Section 1 of the Charter is so broad in its application that it would do nothing to prevent a repetition of this kind of systematic abuse of those fundamental rights which the proposed Constitution is supposed to protect, and we would therefore recommend that Section 1 of the Canadian Charter of Rights and Freedoms be deleted.

Orest Rudzik (President, Ukrainian Canadian Committee, Toronto Branch), p. 59

Mr. Orest Rudzik (President, Ukrainian Canadian Committee, Toronto Branch): If I may respond to that, Mr. Hnatyshyn, I think our position would correspond pretty closely to the position outlined the other night by in effect, another Canadian of Ukrainian descent, Professor Walter Tarnopolsky, speaking on behalf of the Canadian Civil Liberties Union, I believe.

As a practicing lawyer, what concerns me is, first of all, as the provision stands now it comes pretty close to being a tautology. Obviously, in any parliamentary system Parliament is sovereign and fully capable at any one moment of over-riding any other previous enactments. We are not like the Americans who can enshrine a bill of rights and move it up into a kind of platonic heaven and then refer to it for refuge and security. We have to live with the institutions that we are very happy to live with.

So it strikes me that if we do not accept it as a tautology, then we are in fact enshrining a rather dangerous precedent that we, as an immigrant group, has experienced in World War I; that the Japanese have experienced in World War II; and as our French Canadian kin have experienced as recently as October 1970; the ease with which a government can, if it

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feels that an emergency is upon them, exercise their parliamentary society.

Our preference would be to see these rights enshrined absolutely; and then there would be, at least, an onus on the part of the government of the day to explain to its electorate why it feels the emergency is present.

In other words, this seems to be legitimizing a kind of understood, common usage which, I think, has no place when one is speaking of very fundamental liberties. We are speaking about liberties which are, in a sense, prior to later cultural development.

I think Professor Tarnopolsky and some of the other spokesmen expressed their anxiety that this be tacitly accepted as a kind of legitimization of the government, perhaps, being too willing to lean to the opinion of its own day at the time when an apprehended emergency occurs. As I say, we have a bit of historical experience to bear this out.

Mr. Hnatyshyn: I take it, from your answer, that you would prefer to see Section 1 deleted altogether, and having no reference whatever to any normally acceptable legislative jurisdiction contained in any part of the Charter?

Mr. Rudzik: Quite so.

Bryce Mackasey, p. 66

Mr. Mackasey: […] I, too, first, speaking for the Liberal party, welcome your participation this evening and I have learned a lot from your rather forceful presentation. You have reminded me, sir, that all of us are members of a minority and I often say this in public, that all Canadians, regardless of their background are part of a minority, whether it is the French speaking Canadians of Manitoba, the Ukrainians in every province, or the Irish in Quebec, of which I am a very proud member. I have had a lot to do in public life with Canadians of Ukrainian origin, both in Montreal, the St. Charles’ area and in Lincoln which I now represent. So I want to say that I share your views about the need to amend, perhaps strike out, Section 1 of the Charter, the section which in effect negates all the fine words that come after it. So I think I could safely say that because of your representations and all the witnesses who have been here before you, and those who will probably be coming after you, that the general consensus of this Committee, certainly on the part of the Liberal party, is that that particular Section 1 be amended. I am not prepared to say for the government that it will be struck out entirely as Professor Tarnopolsky recommended, but perhaps along the lines, for instance, the spokesman for the New Brunswick Human Rights Commission suggested, not necessarily strike it out but certainly reword it so that there will be some meaning to the entrenchment.

—–o0o—–

November 28, 1980: J.P. Nelligan (Chairman, Special Committee on the Constitution of Canada, Canadian Bar Association) speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 15 (click HERE), p. 7

If I may deal, and I feel now that this is a question that you have heard so many times, with some of the sections which we feel should be altered, I will not go into much detail because, having read some of the reports, I can appreciate you have heard much argument already; but we are, of course, concerned as many other groups are concerned, with the effect of Section 1. We feel that section should be omitted.

We discussed the equivalent provision in the Victoria charter in our Towards a new Canada and that provision, which we think was much milder, we felt would serve to dilute the meaning and educational thrust.

In the case of the proposed Section 1, we fear it goes beyond that, and not only does it dilute the meaning and educational thrust, but it might destroy the entire purpose because, as others have told you, if the standard is a reasonable standard in a parliamentary government, we as democrats must accept that Parliament is deemed, in the normal case, to be reasonable and we run into a vicious spiral whereby the whole bill

[Page 8]

might be for nothing. We therefore propose that the whole section should be removed from the proposal.

Svend Robinson, J.P. Nelligan (Chairman, Special Committee on the Constitution of Canada, Canadian Bar Association), & Victor Paisley (Chairman, Civil Liberties Section, Canadian Bar Association), p. 18

Mr. Robinson: You have referred, as have many other witnesses, to the defects in the wording of Section 1 and certainly my understanding is that the Committee will be proposing some amendments to that Section, because as you point out, otherwise the effect of the remaining portions of the Charter might be completely negated.

Now you have also referred in your brief to Section 8, Section 9 and Section 11(e) of the proposed Charter and would you agree that in their formulation in talking about these rights being in accordance with the law that in effect there is no entrenchment at all because what is being done is to entrench the right of Parliament to enact any law it likes on those questions of search and seizure and bail and the other provisions which are referred to.

Mr. Nelligan: Mr. Paisley?

Mr. Victor Paisley (Chairman, Civil Liberties Section, Canadian Bar Association): Yes, that would be our concern. We conclude that by virtue of Section 1 Parliament has a free hand to enact any legislation in connection with the issues that you have raised and identified and it is tantamount to not entrenching these rights at all.

Ron Irwin & Victor Paisley (Chairman, Civil Liberties Section, Canadian Bar Association), p. 22

Mr. Irwin: […] Now, I put to you that no right is absolute; even the right of free speech is qualified in that perhaps for instance, under the Criminal Code you cannot cause a disturbance in a public place, for example, there are many restrictions to keep our society together without having it turn into anarchy or chaos.

I suggest to you, because you are critical of the wording later on in general, that rather than deleted Section 1, we might come back with a better worded Section 1 that meets the requirements of more inspiring wording, and meets the requirements that rights in here are more enshrined and less susceptible to court interpretation.

Mr. Paisley: Our concern with Section 1 as written is that it would, in our opinion, completely over-ride the rest of the Charter. Without examining the given Section 1 which is envisaged, it is impossible to say whether our concern would be satisfied or not.

We simply take the position that if it remains with the rest of the Charter, it would probably be of no effect at all.

Mr. Irwin: Many groups have expressed the view which you are expressing, and some have come back and said that it should be made stronger and not so intrusive.

I appreciate the difficulty in not having that here now.

Mr. Paisley: May I add to what I have said further. We feel that even if there is no Section 1, it does not mean to say that

[Page 23]

there are going to be unqualified or absolute rights. Experience elsewhere with unqualified rights shows that they are in fact qualified by the courts. There is the statement of the courts in the United States to the effect that the right of freedom of speech does not give a person the right to call “fire!” in a crowded theatre.

We believe that if you have the right stated in an unqualified fashion it would be interpreted in a reasonable way by the court. That is the reason why we suggest it is unnecessary to have this sort of introductory limitation clause as proposed.

Senator Lamontagne & David Matas (Chairman, Constitutional and International Law Section, Canadian Bar Association), p. 29

Senator Lamontagne: Thank you, Mr. Chairman.

I would like to come back to Section 1. Would it not be preferable, rather than omitting this section, as you seem to propose, to draft a restrictive clause instead which, of course, would be compatible with the intention of the United Nations covenant? In my opinion, this would eliminate the constraints brought about by the other sections of the charter and the ones to which you have objected here this morning.

So, what would you think of the suggestion Mr. Fairweather made before this Committee that Section 1 be redrafted to read as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to the legislative limits reasonably justifiable in a free and democratic society.

Could I have your opinion on that redrafting proposed by Mr. Fairweather?

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

[Text]

Mr. Matas: Well, it is our opinion that there should be no limitation clause even in the forms suggested by Mr. Fairweather. One important purpose of a charter of rights is its educational and symbolic value. We feel that the educational thrust and the symbolic value will be diluted by a limitation clause. It may well be at the end of the day the limitation clause of the sort that Mr. Fairweather suggests would result in the same interpretations before the courts as a charter without a limitation clause, but for symbolic and educational reasons we feel that a charter without a limitation clause would be a better charter than one with that type of limitation clause.

—–o0o—–

December 1, 1980, Svend Robinson, Debate in the House of Commons, p. 5221 (click HERE)

We know that as a result of the proposals by the government proposals with respect to an entrenched charter of rights which we support—the role of the courts will be substantially enhanced. We welcome the principle of an entrenched charter of rights, a charter which says no Parliament and, indeed, no provincial legislature at any given time, can through a transient majority, take away fundamental rights which many Canadians thought they had yet which could be swept away at a moment’s notice, as we have seen in this country on too many occasions. We saw it in 1970 with the proclamation of the War Measures Act; we saw it in 1942, and following that the scandalous treatment of Canadians of Japanese origin who were interned and whose property was confiscated. To this day they have not been adequately compensated. We recognize and we support the increased role of the judiciary. In interpreting a charter of the fundamental rights of all Canadians, we recognize there are very serious flaws in the proposal which is presently being studied by the Special Joint Committee on the Constitution. We do accept, as I say, that our judiciary will have a more activist role, a broader role in interpreting this charter of rights.

For example, the very first section of the proposed charter of rights as it is now worded, is a section which is being condemned by every group which has studied it and which has appeared before the constitution committee. This means it will be up to the courts to decide what the appropriate limits are on the fundamental rights and freedoms of Canadians.

—–o0o—–

December 3, 1980: Michael Smith (Legal Counsel, Council for Yukon Indians) & Warren Allmand speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 18 (click HERE), p. 25

Mr. M. Smith: May I add that however we would still be subject to section one of the resolution which states that it is subject to such reasonable limits as are generally accepted in a free and democratic society. In other words, while you do put that in it would still have that major limitation of the first section of the resolution. So it would still leave it wide open for Parliament to go ahead and still override any of the rights we would enjoy.

Mr. Allmand: Well, I understand that you are recommending that section one be tightened up.

Mr. M. Smith: Certainly.

—–o0o—–

December 8, 1980: Norman Whalen (Vice-Chairman, Canadian Federation of Civil Liberties and Human Rights Associations) speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 21 (click HERE), p. 6

Mr. Whalen: […] Mr. Chairman, the serious structural limitations which occur repeatedly through this bill find first expression in Section 1 of the Charter. The limiting provision of this section is so general as to permit, if not cause, the certain failure of everything which the Charter sets out to achieve. If this is poor

[Page 7]

drafting, then it must be improved. If, however, it is the clear expression of the will of its creators, then they have a view of entrenchment which we will submit does not find reflection in the popular will of Canadians.

If the rights set out in the Charter are subject to the limits stipulated in Section 1 then Parliament acting alone will always have supremacy over the Charter, effectively denying what the Charter proposes to create—entrenchment.

Bryce Mackasey, p. 17

Mr. Mackasey: Well, I agree with you that he was quite a witness. I would say to you that the representations of virtually all the organizations on Section 1 have resulted, of course, in the Committee agreeing that Section 1 certainly needs revamping, to say the least, in its present form, and it would render all the good intentions of the Charter superfluous and null and void.

—–o0o—–

December 9, 1980: Philip Cooper (Vice-President, Coalition for the Protection of Human Life), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 22 (click HERE), p. 32

Mr. Cooper: […] Section 1 of the proposed Charter has come under strong attack and quite deservedly so. At a previous hearing, someone called it the Mack Truck Section. We call it the bathtub section because it makes it much too easy for our leaders and lawmakers to pull the plug on human rights and freedoms and if it is included in the Charter the Charter itself will be worth very little.

Section 1 at present says:

. . . the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government.

It will be hard to think of any statement more dangerously vague than this. What is meant by reasonable limits and how is this decided and which democratic society and Parliamentary system are we talking about. Such language opens the door to entrenched present injustices merely because they are widely accepted in supposedly free and democratic societies, and moreover ties Canadian law to the laws and customs of other countries over which Canadians have no control; and to me this is most ironic. We are talking about patriating our constitution and while we are doing this we are proposing to be tied to precedents, set in other countries. It is hard to see what this has to do with producing a Canadian constitution or a Canadian Charter.

[…]

In our belief this kind of restriction has no place in a genuinely free society but unfortunately if Section 1 goes in it is almost certain to be regarded as a normal, generally accepted sort of thing. The argument is, well other people do it, and the standard argument we hear for example is if the government tries to prohibit criticisim by its employees, do other employers not do the same thing? Of course other employers do and it is wrong that other employers do this.

It is a dangerous principle to follow that whatever is done must be right and that is exactly what Section 1 seems to suggest here. For that reason we think it should be deleted and we suggested another Section which should be substituted for it. We realize that occasionally there must be limitations on certain human rights and freedoms but these should be very minimal limitations and they should be applied extremely cautiously, and we suggest this wording:

None of the rights and freedoms set forth in this Charter shall be abridged or suspended except when such action is necessary to preserve the security of the state and the force of this constitution. To have a lawful status and effect the necessity for any such action must be confirmed at the earliest practical opportunity by a vote of two thirds of the members of both Houses of Parliament.

Svend Robinson & Philip Cooper, p. 38

Mr. Robinson: […] You have noted in your brief—I have a summary of the brief here; there is no reference in the brief to abortion per se. I do not think the word is mentioned.

But I would presume that is the thrust of your particular submission. You have mentioned in your recommendations on Section 1, that you do not believe that the rights and freedoms should be subject to the kinds of limits which are generally accepted in a free and democratic society. Certainly we share the concerns about the sweeping nature of that exemption clause.

I would assume that the specific reason you would want that deleted is that there might be an argument that, because abortion and the right of women to choose on abortion, is presently permitted in Canadian society, that that would continue to be permitted under that particular wording. Would that be your reason for wanting that changed?

Mr. Cooper: If I may answer that, we are, of course, concerned with how this would affect the unborn child.

But as we say, we are appearing before you, not as some people would like to suggest, as a single-issue organization; we are a human rights organization concerned with the whole spectrum of human rights.

It is important to put the question of abortion in a total human rights context. We are opposed to Section 1 precisely because it puts all human rights in jeopardy.

Monique Charlebois (Member of the Steering Committee, National Association of Women and the Law), p. 53

Ms. Charlebois: Our next item deals with Section 1 which we call the Mack Truck clause because a person could drive one right through it. We do not intend to dwell at length on this section which creates such loopholes in the legislation. Suffice it to say that we join with the continents of the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women, and the Canadian Civil Liberties Association and other groups in condemning Section 1.

I would just like to summarize a few of our objections. There are two main points. First, Section 1 applies at all times, it is not limited to emergency situations. Secondly, the standards of reasonable limits that are generally accepted in a democratic society appears to us to allow virtually any legislation passed by a majority in Parliament or a legislature.

Apart from concerns regarding the basic rights and freedoms which we share with other groups, we are concerned that this clause may have the effect of completely negating the protection provided by Section 15 on equality of rights.

[…]

There are several essential components which we believe should apply. One, rights can be limited only in an emergency; secondly, the government must have articulated that an emergency exists to exempt any modifications from the Charter. Thirdly, the existence of an emergency is an objective situation which the court must assess and the onus would be on the government to establish that such a situation exist. The standard is to the extent strictly required by the exigencies of the situation. That was the fourth one.

[Page 54]

Fifthly, some other rights are protected in all situations, including the right to equality.

In fact. the difference between Section 1 of the proposed Charter and Article 4 of the International Covenant on Civil and Political Rights is so significant that we believe that the proposed Section 1 would place Canada in a breach of her obligations under this covenant.

Algis Juzukonis (Council of National Ethnocultural Organizations of Canada), p. 77

The proposed resolution, because of the preeminent placing and wording of Section 1, does not give Canadians that basic protection and fails in handing over powers, to paraphrase the Prime Minister, to the people of Canada. We cannot fully endorse the proposed resolution if Section 1 remains the same.

If there is to be a general limitation clause, then it must be restricted as possible without any, and we emphasis any, limitation on Section 15(1), the nondiscrimination rights.

David Copp (Vice-President, British Columbia Civil Liberties Association), p. 105

Mr. Copp: […] The first and most obvious problem is with Section 1, the general limitation section. It provides, as we all know, that the rights set out in the Charter are subject to “such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”. I assume it is now agreed that this Section is unacceptable. With this section the Charter would create completely unfounded expectations. There seems, in this Section, to have been an attempt to reconcile Parliamentary sovereignty with an entrenched bill of rights, but is must be admitted, and squarely faced, that this cannot be done.

Given the tenor of the submissions you have heard, you might think that it would be satisfactory merely to eliminate the reference to parliamentary sovereignty by deleting the phrase “with a parliamentary system of government”, but this would be no improvement. The section as amended still would allow such limits on our fundamental rights as are “reasonable” and “generally accepted in a free and democratic society”.

How are the courts likely to interpret this? Surely, the only test of what is generally accepted in a free and democratic society would be what is generally accepted in this society, and the only test of this would, be what has been passed into law by our democratic assemblies. Therefore, the only test of legislation provided by the Charter, even given that amendment, would be a vague and undefined test of reasonableness. The courts, moreover, might well decide to leave the issue of reasonableness to the Parliament and the legislatures. If so, our Charter would be disentrenched.

[Page 106]

Now, it is obvious there can be circumstances in which the rights listed in the Charter would have to give way. In times of serious crisis threatening the existence of the nation, such as invasion, insurrection, large scale natural disaster, a temporary emergency limitation on our fundamental rights might be necessary. This is obvious. In fact, it is so obvious and so widely agreed, that, given the difficulties in drafting an acceptable limitation clause, it might well be wiser to leave one out.

We cannot now foresee all the situations that might justify temporary emergency limitations. It might therefore be best to let the courts decide in particular cases when the facts of an emergency are known.

However, if there is to be a limitation clause, it must indicate clearly that most contingencies that face the nation are to be dealt with by ordinary means which respect the rights guaranteed in the Charter. It must indicate clearly that limitations are justified only in times of “public emergency which threatens the life of the nation”, and then only “to the extent strictly required by the exigencies of the situation”. Here we use the language of the international Covenant on Civil and Political Rights, Article 4, Section 1, to which Canada is a signatory. We recommend this language to you for your consideration.

Further, if there is to be a limitation clause, it must clearly indicate that limitations on the Charter justified by public emergency are temporary. We would argue for the inclusion in a general limitation clause of four subsections, the first requiring prompt Parliamentary authorization of the invocation of special powers under emergency legislation, such as the War Measures Act.

Second, requiring regular renewal of this authorization if the powers are not to lapse;

Third, allowing a small number of members of either House to force review of the authorization;

And fourth, allowing any innocent person damaged under the special powers to seek compensation in a special tribunal. These matters, I should point out, are discussed more fully in the appendix to our brief.

Svend Robinson & William Black (Member of Executive Committee, British Columbia Civil Liberties Association), p. 115

Mr. Robinson: […] You have referred, as other witnesses have, to Section 1, which has been pointed out would permit the proclamation of the War Measures Act in the same terms as in 1970, and will permit the internment of Canadians of Japanese origin and the confiscation of their property.

Would it be fair to say you would agree with the suggestion of the Canadian Civil Liberties Association that if Section 1 is not rewritten and perhaps if there is not a remedies section—I believe those are the two sections you have pointed out as having perhaps the greatest weaknesses in the proposed charter—and indeed, we would perhaps be better off not giving the Canadian people the illusion that they have certain rights, but rather that we would be better off without this Charter, if those sections are not in fact amended?

Mr. Black: The other way in which, perhaps, you could put it, is that if we do not amend the section, Section 1, we would not have an entrenched charter, even if we were to enact this document.

Section 1 imposes such severe limitations on the whole concept of an entrenched charter of rights that it has to be removed to give any effective force to entrenchment.

Senator Austin, p. 119

May I say that my view is that Section 1 does need redefinition. I began by asking Mr. Chrétien, the Minister of Justice, at the earliest time, questions about those

[Page 120]

reasonable limits generally accepted in a free and democratic society with a parliamentary system of government. I had a considerable degree of difficulty with it. But I think you would understand what the government was endeavouring to achieve as a first step, which was to go only so far as they believed that at some point in the history of these negotiations the provinces had concurred in some level of agreement.

—–o0o—–

December 11, 1980: Fred Sussman (Chairman of the Committee on Legislation, Canadian Association for the Prevention of Crime), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 24 (click HERE), p. 13

Professor Sussman: […] The Association’s presentation is quite brief. We agree with all the provisions of the proposed legal rights with the exceptions which I will now outline. A further exception which must be stated preliminary and necessarily is that we disagree with Section 1 which would subject all the following rights and freedoms “to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”.

To us that is a contradictory statement. It raises the notion of Parliamentary sovereignty and the notion implicit in the Canadian Charter of Rights and Freedoms is the subordination of the Parliament and legislatures to the Charter.

We do not think that our proposed Charter should begin with a section which might, under certain construction, go so far as to substantially eviscerate the succeeding rights and freedoms that are so nobly stated and therefore we suggest the deletion of Section 1.

Senator Roblin & Fred Sussman (Chairman of the Committee on Legislation, Canadian Association for the Prevention of Crime), p. 45

Senator Roblin: […] I welcome our witnesses here today and I would tell them that they have joined a very long list of distinguished contributors to this discussion that do not like Section 1 of this bill, and I take it from what you say that unless Section 1 is either deleted or amended so that it is completely unrecognizable in connection with its present form, that the bill of rights would be seriously flawed as a device to protect the people of Canada.

I think it is an important point you are making because one of the fears I have is that after we have, if we do proceed to the point where we do have an entrenched bill of rights of any kind, the question of disillusionment on the part of the public may be a problem because I think too many guarantees are held out or thought of in their own minds that perhaps will not be realized when the actual bill is before us because we have seen what happens to bill of rights even with the best of intentions.

One of the things I think the public would be interested in, however, is this point, that they want to be protected, I suggest, not so much from the lawmakers whom they can get at through the normal political process, as from the bureaucracy and the administrators, and I think one of the points that you seem to be hinting at in your recommended changes to the legal rights and other parts of this bill bears on that point.

Would you like to make any comment as to whether that observation has got any validity or not?

Professor Sussman: Well, just in response to the question, I am not sure whether it is within the mandate of this delegation, but speaking for myself I would say that it is clear that, from the phrasing of the Canadian Charter of Rights and Freedoms, that everyone has the right to, that is the general phraseology, and Section 26, I believe, or is it Section 29, provides that the Charter is effective against governments, the federal government and provincial governments.

One of the reasons I believe that we feel that this is a strong Charter with the deletion, as you mentioned, of Section 1, is that it constrains not only parliament and the legislatures, but also the government. It goes with this general language because of the specific section which says that it is binding upon the government, and I would construe that to mean that it would bind not only the legislative arm of each government but also all other arms, including the police.

Bryce Mackasey, p. 51

But certainly you have quite properly pointed out to us in language that that layman can understand, people like myself, that that limitation clause would make the rest of the package pretty superfluous.

—–o0o—–

December 12, 1980: David Lepofsky (Member, Ontario Division Board of Management, Canadian National Institute for the Blind), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 25 (click HERE), p. 13

Mr. Lepofsky: […] Section 1 should not govern either Section 14 or Section 15. It is our view that there should be no circumstances where the right to an interpreter, which a deaf, blind or just a deaf person may require in court, should ever be taken away. Why is it either in war or emergency that a deaf-blind person on trial should be denied an interpreter to know what the case is against them. It is too basic and a denial of natural justice.

Moreover when should unwarranted discrimination be permitted? At wartime? At peacetime? In the case of an emergency? It is hard to imagine a situation where it is justifiable, and therefore we have recommended, as have other groups, that Section 14 and Section 15 be absolute rights, rights not subject to Section 1.

Alternatively, if that point of view is not acceptable to the Committee, it is our submission that the wording in Section 1 is far, far too broad. You have heard all the arguments before, we can only reiterate them, that Section 1—labelled by some as the Mack truck provision—will in fact make the rest of the Charter of Rights a virtually worthless and impotent means of protecting civil liberties.

In particular, the generally accepted view of the public with respect to handicapped persons is that they are often not capable of taking care of themselves, not capable of maintaining a job, not capable of self-sufficiency, and therefore the kinds of laws that I have discussed previously that are discriminatory would be under Section 1 generally accepted in a free and democratic society, passed by these kinds of Parliaments. And accordingly, if Section 1 remains, and if Section 15 is still subject to it, it is our view that Section 1 must be very narrowly constrained to protect minority rights and in particular, handicapped rights.

—–o0o—–

December 15, 1980: Ian Waddell & Dietrich Kiesewalter (Co-ordinating Chairman, German-Canadian Committee on the Constitution)speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 26 (click HERE), p. 48

Mr. Waddell: Well, I am told that the Japanese Canadians were here and told us a similar story during World War II. There has been some suggestion that this was extraordinary, that it only happens in time of war, not in peace time, but I note the War Measures Act 10 years ago which now historians say was wrong and unnecessary, and I wonder if your organization has taken any position with respect to the use of the War Measures Act in peace time?

Mr. Kiesewalter: We have said in our brief that we find Section 1, with the exemption it proposes, quite unacceptable. I think this would cover that. If you have entrenched rights they should be entrenched without the limitation in Section 1.

—–o0o—–

December 16, 1980: William Badcock (Legal Counsel, National Indian Brotherhood), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 27 (click HERE), p. 87

Mr. William T. Badcock (Legal Counsel, National Indian Brotherhood): Mr. Chairman, honourable Senators and honourable members. Appended to the brief that you have before you are the amendments proposed by the National Indian Brotherhood to the proposed resolution that is to be sent to England. I might skip over a couple of pages first, and on page 6 point out that the National Indian Brotherhood

[Page 87]

rejects entirely Section 1 of the Canadian Charter of Rights and Freedoms.

I believe that you have heard before the reasons for rejecting this particular section. Suffice to say that in the view of the National Indian Brotherhood the only purpose of this section is to allow the governments to over-ride our rights without consent, which is completely unacceptable. However, I believe other groups have indicated that Section 1 is entirely unacceptable in the proposed resolution.

—–o0o—–

December 17, 1980, Elmer MacKay, Debate in the House of Commons, p. 14181 (click HERE)

Hon. Elmer M. MacKay (Central Nova): […] The very first part of our Charter of Rights and Freedoms in our proposed new Constitution has a weasel clause in it. Particularly in view of the events unfolding here today I do not think it has to be taken very seriously, at least until the government does something to justify the faith it is asking Canadians to have in it.

Before I read it I want to remind the House, for example, that we have done a lot of talking about freedom of information, and one of the most regressive clauses of any legislation of any civilized country is Section 41(2) of the Federal Court Act of Canada. I remind hon. members also that drastic modifications have been proposed to our freedom of information legislation. Yet right now in Quebec members of the Royal Canadian Mounted Police are being denied an adequate opportunity to defend themselves by virtue of this particular section’s invocation by the Solicitor General (Mr. Kaplan).

This was not the first time that this draconian action has been taken since the freedom of information act has been brought forward in committee. It would seem to me that if the government were the least bit serious about doing something to become more enlightened in this respect, it would not be doing what it is doing with Section 41(2), when it is apparently on the way out, nor would it be taking the course of action it is taking here today in refusing to bring forward the kind of information that it has been requested to do if it were serious about the ideals of our new Constitution. The first clause reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it—

—and here is where it starts to weasel, Mr. Speaker—

—subject only to such reasonable limits—

—as are generally accepted in a free and democratic society with a parliamentary system of government.

What kind of system are we talking about? Are we talking about Tanzania? If we are, I do not have very much confidence. I do not think we will ever assuage the fears of Canadians about the implications of arbitrary pieces of legislation such as this, or regulations, until the government demonstrates by its actions what it intends to do, instead of obfuscating. As the author, Eldridge Cleaver, once said, “If you are going to talk the talk, you have got to walk the walk.” I do not understand why in times of peace, as the hon. member for Saskatoon West (Mr. Hnatyshyn) said, “We have to put up with the kind of apprehended fears caused by this sort of draconian regulation”.

Back in the 1950s, the hysteria was over the spread of atomic technology. I can well remember a bit of doggerel by the late Pete Seeger which went something like this, “The atom don’t care about all this hysteria. It flourishes in Los Alamos and also Siberia”. So, it may seem, will internment camps. If we will take this kind of legislation or regulation to its logical conclusion, maybe we will have a “Gulag Archipelago” in North Bay, or perhaps Thunder Bay. Perhaps that will be a great advancement in our contemporary Canadian Constitution.

—–o0o—–

December 18, 1980: Nick Schultz (Associate General Counsel, Public Interest Advocacy Centre), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 29 (click HERE), p. 20

Mr. Schultz: […] Section 1, which preserves the existing constitutional tradition, must be deleted to fully entrench the Charter. Its meaningless vagueness opens the door to the very abuse to the supremacy of Parliament which the Charter is intended to check.

Moreover, special provisions are necessary to instruct judges in the Charter’s interpretation.

By deleting Section 1 of the Charter, there will be removed an obvious peg for argument designed to thwart the Charter’s purposes.

Coline Campbell & Clarke MacDonald (Senior Secretary, Office of Church in Society, United Church of Canada), p. 89

Miss Campbell: You are asking us by implication to go further. You may not be aware of it, but you follow up on a group we had this morning the National Anti-Poverty Organization and the Public Interest Advocacy Centre. I am sure they would be very pleased to hear your brief this afternoon, because some of the same areas you have mentioned they are asking us to entrench as well.

You are probably aware of Section 1. There has been a great deal of criticism that if you are trying to entrench a bill of rights, Section 1 leaves power with the legislature or Parliament to overcome the charter of rights and freedoms. In other words, the supremacy of Parliament is there over this proposal.

Do you feel the supremacy of Parliament should be there, or do you feel it should be so entrenched that, unless there was some national interest at stake no group could overcome this basic charter?

Mr. MacDonald: I want Mr. de Jong to comment on this in a minute but I would just give a personal reaction to it.

With all due respect to any person who is preson or absent, parliaments are made up of human beings; they are subject to error at times. Therefore while things could happen in a parliamentary act which would not be in the interests of the human rights of the citizens, we believe that so far as it is possible those human rights should be covered in the charter.

Now, of course, there should be extenuating circumstances which we acknowledge, living in the kind of uncertain, hazardous world in which we live. So we do acknowledge that. There would be circumstances which no one could predict. The parliament of the day would have to deal with those circumstances. But basically we would want to see them written in.

Miss Campbell: And not allowed to be tampered with?

Mr. MacDonald: Not allowed to be tampered with, by the whim of the government of the day.

Laurence Decore (Chairman, Canadian Consultative Council on Multiculturalism), p. 125

Mr. Laurence Decore (Chairman, Canadian Consultative Council on Multiculturalism): […] The basic purpose of a Charter of Rights must be to protect individuals and minority groups. Section 1 of the Charter makes it possible to deny fundamental freedoms to individuals or groups when the words:

… subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government …

are used.

We join with others who have appeared before you in strongly recommending that that clause, or the wording in that section which allows legislators to over-ride the rights of individuals or groups be eliminated from the Charter.

In our judgment, a Charter of Rights must put some fundamental freedoms beyond the power of a legislature to effect. As Section 1 now stands, rights can be taken away when you need them most—in times of temper and in times of uncertainty.

Therefore, Mr. Chairman, we recommend, in the same thrust of the broad objectives we supported earlier, the following wording for Section 1:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such limits as are prescribed by law and are reasonably justifiable and humane in a pluralistic and democratic society.

Dr. Richard Splane (President, Canadian Association of Social Workers), p. 148

Mr. Splane: […] We pick out of the proposed act three sections for special consideration. One of them is the very first one, which I gather has been referred to many times, Section 1, and the position we take there is that it is not good enough to allow for the possibility in the future of our legislatures acting, in times of stress, in enacting, as there are instances in the past they have done, that fall short of our highest ideals.

We want to prevent what I found in a document I was reading on the plane from Vancouver today, we want to prevent what my colleague at the University of British Columbia, Dr. Keith Banting, has described as the restless search of governments for public applause, and that restless search of governments for public applause has on occasion caused them to take actions which fell short of the ideals on human rights that they normally and over the long run would like to see sustained.

Therefore, without attempting to suggest what the wording should be, we feel that Section 1, if it is not dropped, should certainly be redefined in some way which would meet that point.

Jim Hawkes, p. 152

Mr. Hawkes: […] When you deal with Section 1, you ask for it to be taken out of the Charter because you feel that at a time of stress or crisis, it could be a dangerous kind of clause and could be used by a legislature at a particular point in time to take away rights and freedoms, to modify them significantly.

Margaret Mitchell & Dr. Richard Splane (President, Canadian Association of Social Workers), p. 154

Mrs. Mitchell: Thank you, Mr. Chairman. I would like to welcome our guests and hope the jet lag from Vancouver is not too bad at this time of the night.

The first question I would like to raise is in relation to Section 1. Certainly the NDP agrees with you that the reasonable limits section is a dangerous section and we will be proposing amendments.

I might mention that the Canadian Jewish Congress, I believe, when they appeared, recommended that any restrictive measures that were enacted under this clause which are inconsistent with the operation of the Charter, that it should be added that they would lapse after 20 days, if not further extended by a two thirds vote of the Parliament of Canada and I wondered what your reaction to that kind of restrictive, defining this restriction, would be.

Mr. Splane: Well …

Mrs. Mitchell: Or have you delved into it?

Mr. Splane: We have not, I was not aware of that particular proposal. It would seem to provide a kind of cooling off period to bring a legislature to its best self, although I do not think I could comment with any kind of assurance that I was speaking for the Association or even my own considered judgment on what on the face of it sounds like a good proposal.

Mrs. Mitchell: But you think the section should be changed. You have not a specific recommendation on that.

Mr. Splane: Not a specific recommendation.

Mrs. Mitchell: All right.

—–o0o—–

December 19, 1980: Allan Blakeney (Premier of Saskatchewan), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 30 (click HERE), p. 39

Mr. Blakeney: […] I had thought that the resolution before this Committee was not too bad in that regard, because it has Section 1 which is a kind of non obstante clause in advance. You may think that is too comprehensive, but the suggestion of deleting Section 1 raise all my apprehensions, because we are then left with a very large number of judgments to be made by judges, and if we want to explore this area I could suggest one or two fairly horrendous decisions which would fall to the judiciary to be made which I do not believe Canadians in any way believe ought to be made by the judiciary as opposed to their elected representatives.

—–o0o—–

January 6, 1981: Diana Davidson (President, Vancouver People’s Law School Society), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 32 (click HERE), p. 10

Mrs. Diana Davidson (President, Vancouver People’s Law School Society): […] Dealing now with the Charter by section, we are in agreement with all those groups recommending the deletion of Section 1. Our opinion is that there is a very real risk that Section 1 poisons the entire document and is in danger of rendering it ineffective. I should say, when I say “we”, I am referring to the delegates at the conference in Vancouver, the conference at Nararnata and the tiny seminars in Prince Rupert and Terrace and those groups that have gotten hold of us. So far as I am able, I believe that the recommendations I am bringing to you have been endorsed by those with whom we have been in contact and given the time limitations, we have made really our best effort and have been in a peculiarly good position to make that effort to get the opinion of as many people as we could.

So we have taken the position Section 1 poisons the entire document and is in danger of rendering it ineffective, and so should be removed.

Diana Davidson & Bryce Mackasey, p. 26

Mr. Mackasey: For instance, in Section 1, you have suggested that it be deleted.

Mrs. Davidson: Yes.

Mr. Mackasey: And so have many other reputable witnesses.

Mrs. Davidson: Right.

Mr. Mackasey: On the other hand, some of the Premiers, Premier Blakeney, has talked about the danger of deleting Section 1. Other creditable witnesses have suggested that we not delete it but that we amend it. Therefore, it is obvious that whatever we do to Section 1, and we will, somebody will be happy and some people will be unhappy. Is that a fair assumption?

Mrs. Davidson: It may be a fair assumption but with all due respect what is relevant is a different question. Whatever section is in place of it, the only question is does it take away the rights that that Charter is setting out?

One of the things that happened at the conference, the delegates, the constitutional law experts explained the effect of the actual wording section by section. It really broke their hearts because it is one thing to have your government pass some lousy legislation that is obvious and you hate it. It is another thing to have proposed to you something that you did not notice is full of booby traps and Section 1 as it is now has got—who knows what is going to happen—so if we are serious about the Charter out it goes and whatever comes in its place must be very certain it is not going to poison the document.

Mr. Mackasey: In any event, I am just using that as an example that Section 1 will be amended or deleted. Something will happen to it. I am really saying that whatever we do will satisfy some people and not satisfy others.

Mark Rose & Carole Christinson (Afro-Asian Foundation of Canada), p. 39

Mr. Rose: You have spoken about the Japanese in World War II. I was there in British Columbia during that period. However I cannot see anything in Section 1 of the Charter which would prevent that from happening again.

So I am wondering, if you used this “reasonable limits”, “generally accepted” sort of thing, et cetera, I was wondering if you had something specific to suggest in that clause?

Ms. Christinson: Had we had more time to put this together rather than the two or three days in which we had to do it, we would probably have wanted to take exception to that particular clause as we know several other group who have appeared before you have done. We are very wary of that kind of wording. Who knows what “reasonable limits” are and how they would be interpreted by different governments et cetera.

So, we would tend to agree with the opinion of several other groups who have come before you that either that should be done away entirely and replaced with something which is much more explicit or at least expanded to not almost suggest to governments that they can decide or to judicial system that they can decide from day to day what ii and what is not a reasonable limit.

Mr. Rose: Some people have suggested that you should remove the clause and list the specific emergencies which would limit the clause. Some of us are attracted by that.

—–o0o—–

January 7, 1981: Garth Stevenson (Alberta New Democratic Party), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 33 (click HERE), p. 110

Doctor Garth Stevenson (Alberta New Democratic Party): Mr. Chairman, and honourable members, as Mr. Notley pointed out earlier, we do support the principle of entrenching Human Rights in the Constitution.

We do not view this as a question of centralization or one which divides the interests of the East from those of the West, but really as a measure which would strengthen the individual against the state, and by the state we mean both levels of government.

While we respect the argument that the judgment of the legislature should be relied upon, at the same time we believe that in certain circumstances the rights of unpopular individuals and unpopular minorities may not be adequately protected if left to the legislatures to deal with. This is an unhappy fact, but one which has been demonstrated by a great deal of Canadian history.

So on these grounds we do support entrenchment.

Our brief, you will notice, does not go into very much detail concerning the substantive content of our Charter of Rights, although we have been impressed by the testimony of a number of groups which have already appeared before you.

However, there is one comment we would like to make, namely that we, along with some others who have appeared before you, do take exception to what is practically the first clause of the proposed resolution, which says—that “subject only to such reasonable limits as are generally accepted in a free and democratic society under a parliamentary system of government”; we feel this is either unnecessary or dangerous, possibly both, in that it is really taking away with one hand what is given with the other. We would support its deletion from the proposed Charter.

—–o0o—–

January 8, 1981: Bryce Mackasey & Professor Maxwell Cohen (McGill University), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 34 (click HERE), p. 78

Mr. Mackasey: […] What I would like to ask you is that in the light of premier Blakeney’s view on Section 1 of the Bill of Rights, the view

[Page 79]

expressed, for instance, quite eloquently by you on behalf of the Jewish Congress, that Section 1 be deleted, the limitation clause, where I was very clear in my own mind two weeks ago that we should delete it, I am having second thoughts, perhaps because Professor LaForest spoke today of the wisdom of the political process, and I have a little more, paradoxically, confidence in the courts when he pointed out that the judges do read the newspapers to find out what people will or will not accept. What is your view? Do you feel it should be deleted, as you suggest, or if not, how would you amend it?

Professor Cohen: Your point, Mr. Mackasey, is a very central one to the viability of the Bill of Rights.

My mind has not changed since November 18th, sir. I believe in the way which Section 1 is now worded makes no serious contribution to the protection of the rights system.

You will recall in that debate, we said that if the objective of article I was to provide a reserve of emergency power so that in a particular type of crisis, whether military, domestic or financial disaster, you would have an overriding power in Parliament to move, then what you really need is an up to date view of an emergency power concept, That we give you on page 18 of our brief. I retain that concept.

I do not think that the attempt to balance Section 1 as article 1 does, that the following rights are guaranteed subject to whatever is necessary in a responsible and democratic society—I do not think you can expect the courts to be really happy with that, and you cannot expect history to be happy with it.

I think you are better off having a frank statement on emergency power, and then leaving it to Parliament to pass laws pursuant to it, and, assuming the courts reading the newspapers will know these emergency powers are trying to meet the situation and are applicable under the following conditions.

Do not needlessly weaken the rights themselves by having a sort of “if but” clause, and go straight to the heart of the emergency doctrine per se. I still think that is the sensible approach, and you lose nothing by it.

Mr. Mackasey: Because I note that quite a few members would like to take advantage of your presence, I do not propose to put many more questions.

But putting aside for the moment the turmoil in the country and possibly that we, unintentionally, could be even adding to the confusion and dissension are you in favour of patriating the constitution? I would like to have that placed on record.

Professor Cohen: Oh yes. I have not really changed my fundamental view at all.

All I have done today is to point out the warning signs

Gwen Landolt (Legal Counsel, Campaign Life—Canada), p. 122

[…] In particular we would like to draw attention to two sections of the proposed charter which give us grave concern.

The first is Section 1 of the charter. I know this has been discussed by many lawyers beforehand but the Section 1 is that

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

That is a wide opening and it is our view that that section would give the Supreme Court of Canada unprecedented wide and sweeping powers to make political decisions. The court need only to decide what in its opinion was generally accepted in a free and democratic society, and that would be that. It is tremendously wide and opens the door to all sorts of ramifications. Also that wording of Section 1 will have the effect of rendering the remaining sections of the charter meaningless since it would override any of the rights and freedoms including that of the right to life allegedly enshrined in the charter.

Gwen Landolt, p. 125

We would like Section 1 of the Charter of Rights and Freedoms be eliminated. Section 1, as already mentioned, gives total and complete power to the Supreme Court of Canada to do what it likes, when it likes and how it likes. And no democracy can survive with a Supreme Court given the great power it has by Section 1 of the proposed Charter.

—–o0o—–

January 12, 1981: Jean Chrétien, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 36 (click HERE), p. 11

Section 1: many witnesses and most members of the Committee have expressed concerns about Section 1 of the Charter of Rights and Freedoms. These concerns basically have to do with the argument that the clause as drafted leaves open the possibility that a great number of limits could be placed upon rights and freedoms in the Charter by the actions of Parliament or a legislature.

The purpose of the original draft was to ensure that the people, the legislatures and the courts would not look upon rights as absolute, but would recognize them as subject reasonable limitations. While some believed no limitation clause was necessary, many witnesses agreed such a clause is desirable but argued that a more stringent formulation is necessary.

You have received a number of constructive suggestions. I am prepared on behalf of the government to accept an amendment similar to that suggested by Mr. Gordon Fairweather, Chief Commissioner of the Canadian Human Rights Commission and by Professor Walter Tanopolsky, President of the Canadian Civil Liberties Association. The wording I am proposing is designed to make the limitation clause even more stringent than that recommended by Mr. Fairweather and Professor Tarnopolsky. I am proposing that Section 1 read as follows:

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.

This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.

—–o0o—–

January 15, 1981: Senator Roblin & Jean Chrétien, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 38 (click HERE), p. 41

Senator Roblin: […] Now, the point is that we heard testimony from some 19 different organizations, I will not name them all but some of their presentations stick in my memory, the Canadian Civil Rights Association, the Canadian Jewish Congress, the Canadian Human Rights Commission, the Canadian Advisory Council on the Status of Women, the National Association of Japanese Canadians, and a good many others, who were concerned about Section 1.

While I cannot attempt to summarize with any accuracy what each one said, some of them, at least—and some of the important ones left me with the impression—that this Section 1, as it stood, was so limiting in its impact and force as to destroy—in fact some of them went so far as to say they would just as soon not have the whole thing if Section 1 was in there: that the limiting character of Section 1 was so severe as to destroy the effectiveness of the other guarantees in the Charter.

[…]

Well I take it that the purpose of this change was to somewhat reduce the limiting direction to the courts of Canada that this section gives when they interpret the rest of the Charter.

I want to explore with you just how far it really goes in making that change in the rules; because “reasonable limits” is the same phrase we have in the previous one, and it is modified by “prescribed by law”. That is number one. That can probably be married off with “parliamentary system of government” which you have in the first effort.

Then it goes on to say,

as can be demonstrably justified

Well, if there is a law passed by Parliament, I think the initial assumption is that it is justified or Parliament would not have done it.

[Page 42]

Whether the courts will take that view, I do not know. But it seems to me that there is a risk that they will.

Then you go on to say:

as can be demonstrably justified in a free and democratic society.

Well, if a free and democratic society passes a law, what is the difference between the situation that we have here and the one you had in the formal one where you said:

generally accepted in a free and democratic society with a parliamentary system of government.

My fear is that you have not moved very far in removing the objections of these 19 bodies which have appeared before us, and I would like to have your rationale.

Mr. Chrétien: I think we have moved quite far; and, in the case of those who were the main proponents of the change, Professor Tarnopolsky and Mr. Fairweather, it is the text which they have more or less suggested, and they have approved it and commended me on it.

This is to make sure that, even if the law were passed—it was a danger before that it was almost impossible for the court to go behind a decision of a Parliament or a legislative assembly; but here, even if the law is passed, there is another test, namely that it can be demonstrably justified in relation to this Charter.

So this limited clause narrows the limits of the courts. The first one—and you heard the testimony given here, where there was argument to the effect that it was so limiting in scope as to be almost useless, and we would be caught in the same position as we were in the case of the Bill of Rights of Mr. Diefenbaker which has not in fact been used in the courts. Why have we done it?

It was not my initial proposition. I have done it under pressure from the provincial governments. It is a good illustration of trying to get on the right keel and you end up with a situation where it was meaningless. So we went back to the original text. This will permit the courts to appreciate whether legislation passed by the different levels of Parliament and legislative assemblies are in conformity with the Charter.

The intention of a Charter is to limit the scope of the legislature and Parliament in relation to the fundamental rights of Canadian citizens.

Jean Chrétien, p. 44

The idea is that we have to find the proper balance between the protection of individual rights and the legitimate power of any legislative body. You have to respect the fact that there are legislatures and people have been elected there and they should keep some power of legislation.

Coline Campbell, Jean Chrétien, & Barry Strayer (Assistant Deputy Minister, Public Law, Department of Justice), p. 45

Miss Campbell: […] I wonder if there is a difference in your view in onus between a reasonably justifiable onus on the person before the courts to show that their rights, let us say that the legislatures have not infringed upon the rights of the person, or demonstrably justifiable. To me it seems there might be a heavier onus on the legislature to show they have not.

Mr. Chrétien: I have explained this morning the policy of why we have done it, and that it was to find an equilibrium between the rights of the citizens to be protected by the courts and the power of the legislature or Parliament to pass law, and perhaps you are asking me a rather technical question and would you reply to that, Mr. Strayer, please.

Mr. Strayer: Mr. Chairman, it was the belief of the drafters that by going to these words demonstrably justified or can be demonstrably justified, it was making it clear that the onus would be on the government, or whoever is trying to justify the action that limited the rights set out in the charter, the onus would be on them to show that the limit which was being imposed not only was reasonable, which was in the first draft, but also that it was justifiable or justified, and in doing that they would have to show that in relation to the situation being dealt with, the limit was justifiable.

So whereas before there was no indication as to who had the onus of proving that the limit was reasonable or unreasonable, or whether it was generally accepted or not generally accepted. This seems to put the onus, appears to put the onus on the government that has to try to uphold some kind of limit to the rights set out in the charter. Uphold the legislation or administrative action or whatever it is in question.

I might add, Mr. Chairman, that this kind of language was recommended by the Canadian Human Rights Commission. They had two possible drafts, and one of them was very similar to the words in the present proposal, the new proposal. They used words such as prescribed by law as are reasonably justifiable in a free and democratic society. Professor Tarnopolsky, in appearing before the Committee, talked about using words such as restrictions as are prescribed by law and are necessary for the purposes of a free and democratic society, or he said you could use terms such as demonstrably justifiable or demonstrably necessary, but he said the onus has clearly to be on the one who argues in favour of restrictions, and that apparently is what he thought such language would do, it would put the onus on the person trying to justify the limitation.

Svend Robinson, Jean Chrétien, & Barry Strayer, p. 46

Mr. Robinson: […] Mr. Minister, Section 1 as it stands now modifies everything that is contained in the Charter, and I appreciate that there can be difficulties in defining which particular rights should never be abrogated. Would you be prepared to look as a minimum at least at excluding those rights which are contained in the Covenant? If you look at the Covenant I am sure you would agree that it is not a very comprehensive listing, but at least excluding, for example, the right to protection from cruel and unusual punishment.

Would you be prepared to look at those areas which this Committee as a whole could agree upon should be protected from trampling upon at any time?

Mr. Chrétien: If you ask me would I be willing to look upon, I can look into that but I do think that why we have proceeded in that way, the technical reason, I will ask my advisor to reply to aspect.

Mr. Strayer: Well, any attempt to make a list is going to be arbitrary, I think, even if you look at the international covenant. It is somewhat arbitrary in the rights it says can never be derogated and those which it implies can be derogated.

For example, in time of emergency or war it forbids derogation from rights such as rights against discrimination on the basis of race or colour but it allows discrimination, apparently, on the basis of national origin; and one can argue over what rights ought to be in theory derogable in times of emergency and ones which might not be, but the approach which we are taking here in the new Section 1 is to leave that as a matter of judgment in the given situation and it is very hard to imagine any situation, for example, where a court would say that it was, in the words of the section, demonstrably justified in a

[Page 47]

free and democratic society to use cruel or unusual punishment. Even in time of emergency.

Mr. Robinson: Mr. Chairman, I understand the argument that was made, but just to conclude this question with respect to Section 1, I do hope that if the Committee can agree on certain restricted areas which, as you say, should never be, I assume you would agree, never be violated, that the government would be prepared to at least consider a possible amendment to that effect.

The second part of my question, Mr. Chairman, relates to the use of te word law in Section 1. Any limitations must be as the section states prescribed “by law”. My reading of that, and I hope I am wrong, but my reading of that is a regulation of the government could limit in fact any of the rights or freedoms which are contained this proposed Charter. I believe that the word law indeed does include a regulation as it has been defined in Canadian jurisprudence and, Mr. Minister I would hope …

Mr. Chrétien: When you talk about regulations …

Mr. Robinson: If I can just conclude my question, Mr. Minister, my understanding is that that is the way the law is interpreted, if that is the case then what this is saying is the government, the Cabinet can take away any of these rights, although there is still the recourse to the courts, and I would hope that you would be prepared to look seriously at an amendment which would make it very clear that it is only legislatures or Parliament which could abrogate these very fundamental rights of Canadian citizens?

Mr. Chrétien: Yes, but the regution that when we vote any laws in Parliament we always make provisions for regulations, and the regulations that flow from law are part of the law that has been passed, a delegation of authority to the executive to proclaim some regulation that will make possible the law that we pass the enforced, and I think that everything is part of the same law and it will be impossible to—I can look at your suggestion but the principles are the same and if any regulation passed by any government in relation to regulation based on the law, this same test will apply, and the citizens will have the same recourse and I do not see the point unless there are some regulations that could be made outside of the law, but there is not. When you pass an Order in Council, we always have to base our decision on some legal, we need a legal base.

Mr. Robinson: There is no debate in Parliament.

Mr. Chrétien: But there is a debate in Parliament to authorize the executive branch of the government to do this and do that, otherwise if we are not authorized by Parliament we cannot do that. Perhaps, I do not know, there might be some exception to that rule. Do you know any?

Mr. Strayer: No.

Mr. Chrétien: I do not. Because if we act without any authority from any law, our action is illegal. So I am not preoccupied with the problem you are raising.

[Page 48]

Of course, you can always argue in the House we should never give any delegated authority to any Order in Council.

Mr. Robinson: No, no.

Mr. Chrétien: No, but y could, and say everything has to be approved by Parliament on a daily basis. We could but it would be a hell of a mess.

Mr. Robinson: Mr. Minister, I am saying that where there are to be abrogations, that Parliament should discuss that at least.

[…]

Senator Connolly: Just on that last point, I wonder whether this should not be said, that if Parliament is discussing a piece of legislation which authorizes the making of regulations, it flows from the passing of that piece of legislation that the regulations must be within the four corners of the act, and I suppose the theory is that if Parliament is afraid that something is going to be done under the authority to make regulations which go beyond the act, then I suppose it is up to the parliamentarian at that time to make his objection.

Now, you do say, and you did say, if a regulation violates the mother act under which it is made there is recourse to the courts. Your objection to that, I take it, is that it takes too much time and expense and everything else, and I think that is the risk we run in connection with giving the executive a regulation making authority.

Jean Chrétien: And there is too, I would like to say there is, under statutory act procedures there is a revision of all the Orders in Council by Committees of the House and you remember that, but I do think that the principles are the same.

We are giving the Canadians some rights and the limits are mentioned in Section 1 and the courts can intervene and if the rights of the citizens have not been respected in the piece of legislation or any regulation, they are illegal and the court will decide that they do not meet the test that they can be demonstrably justified in a free and democratic society.

John Fraser & Roger Tassé (Q.C., Deputy Minister, Department of Justice), p. 49

Mr. Fraser: […] what effect does this have on the law contained in the common law and has this been considered? Specifically, and to make it easy, a contract, contracts in their very nature are discriminatory, and I am wondering if this problem has been addressed?

[…]

Mr. Roger Tassé, (Q.C., Deputy Minister, Department of Justice): I think that is an important question you have raised, Mr. Fraser. In effect when you look at the meaning of law, it may mean a number of things and in this context it could mean an Act of Parliament, for example, and we did not want it to be restricted to an Act of Parliament for some of the reasons that have been expressed, and also for another reason that has not been mentioned so far, and that is in effect we wanted also to cover rules of the common law.

For example, in the area of libel, defamation. And in many provinces this has not been clarified. There are rules that have just been expressed over time by the courts and we did not want to upset all of this legislation so that is why in effect in French we have used an expression that would embody as well rules of common law that have been established by courts and it could be in the civil law field or in the common law, most probably in the common law, but also would include the statute and include a regulation enacted under an appropriately passed or enacted legislation.

Mr. Fraser: So what you are saying, then, is that …

Mr. Tassé: Perhaps if I may just expand on what I have just said. For example, if you look at the freedom of expression, the law of defamation, the law of libel imposes some limits on that so we wanted these to continue to have application and we think that they would fit in effect the tests that are set out in Section 1.

Mr. Fraser: Well, then, by the same token, so does the law of master and servant, the law of contract and the law of partnership, and a number of other common law notions.

[Page 50]

Could you foresee a situation where, on the basis of the rights set out in here, you could have a conflict between what are considered laws which stem from the body of case law that has come down over the centuries which could be in conflict with the right that has been set out in the Charter?

Mr. Tassé: Well, Mr. Fraser, we do not see these rights or these prescriptions of the Charter to have application in terms of a relationship between individuals. We see them as applying in terms of a relationship between the state and individuals, so I am not sure that in terms of contract laws, unless we were looking at the situation where in fact we are talking of contracts passed between the state, the government, and that might offend a constitutional limitation on some of these rights, then the Charter might be called upon for assistance but if we are just looking at in effect relationships, contractural relationships between individuals, I do not see how the Charter itself could be called upon to assist in resolution of conflicts that may arise.

Mr. Fraser: Well, I do not want to take this too far into the realm of theory but individual contracts are constantly formed as a result of discrimination between certain options and certain individuals, and that has always been, within some limitations, an accepted freedom to enter into contract unless there is a specific piece of legislation which forbids it. You can take, for instance, the codes in some of the provinces which now constrain absolute freedom of contract in hiring policies.

But I take it that what you are saying is that in the English version when you say “prescribed by law”, that is not just statute law, but is also the common law?

Mr. Tassé: Yes.

Mr. Fraser: As decided by the cases?

Mr. Tassé: Yes.

Mr. Fraser: But they could still be challenged if somebody could take the issue to a court and say that that law can no longer be demonstrably justified in a free and democratic society?

Mr. Tassé: That is correct.

—–o0o—–

January 21, 1981: Serge Joyal (Joint Chairman), Jake Epp, Ron Irwin, Senator Asselin, Eymard Corbin, Svend Robinson, Bob Kaplan, Lorne Nystrom, Senator Austin, Senator Tremblay, Senator Goldenberg speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 42, on Ron Irwin’s Amendment (click HERE), p. 23

The Joint Chairman (Mr. Joyal): […] 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 NDP 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, 1961, 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.

[Page 24]

I move 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.

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 1 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.

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 Committee members have accepted that it is only for Clause 1 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 one 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 1, 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

[Page 26]

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 really 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 exactly 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

[Page 27]

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 1 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

[Page 28]

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

[Page 29]

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 1 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 that 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 1, 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 1, which witnesses did you listen to, which witnesses made a recommendation in line with your proposed Clause 1 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 strong Charter of Rights for many, many years before the slaves were freed, I think for about 100 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 1 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 1 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):

[Page 35]

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

[Page 36]

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.

Motion agreed to, on division, p. 3

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.

Serge Joyal (Chairman), Jake Epp, Senator Tremblay, Robert Ogle, Bob Kaplan, Svend Robinson, James McGrath, Senator Austin, Bryce Mackasey, Senator Tremblay, Jean Lapierre Lapierre, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada on Jake Epp’s Amendment, p. 36

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 1 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.

[Page 37]

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 1, 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

[Page 38]

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 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 law goes beyond

[Page 39]

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 the 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.

[Page 45]

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.

—–o0o—–

January 22, 1981: Jim Hawkes, David Crombie, Bryce Mackasey, Jake Epp, and James McGrath, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 43, on Jake Epp’s Amendment (click HERE), p. 13

On Clause 1—Rights and Freedoms in Canada

Mr. Hawkes: Thank you, Mr. Chairman. I hope my colleague, Mr. Crombie, will arrive before we are done with this amendment.

I sat here yesterday and recalled previous meetings of this Committee and one day in particular when Mr. Mackasey took exception to a statement I made that it was my belief at that time that the Committee would find it very difficult to treat this piece of legislation in the manner that a variety of witnesses were asking us to treat it, with open minds, rather than with preset government instructions. One of the comments which he made was that I might be quite surprised by the degree to which I, and other members around this table, might be persuasive; and I think we have encountered our first clause of substance and import in which it behooves one to attempt to be persuasive.

What we are asking on this side of .the table in this amendment is to add at the beginning of Schedule B of the Constitution act, 1981, the first set of words which appear under the Canadian Charter of Rights and Freedoms. The way that Clause sits now, and I would like members opposite to perhaps picture a new Canadian, someone who has applied for status to come into this country as a new immigrant and faced with the Clause as it now sits, this is the definition of our nation and its rights and freedoms, and it says:

I think of those new Canadians who have perhaps a rudimentary knowledge of either English or French whose vocabularies are limited but will grow through contact with our society, and I wonder what that means to them. I suspect it means very little and I think I could guarantee that it does nothing to lift up the soul to create a climate, to create and create an atmosphere that they could identify with and feel good about.

What we are asking is to add a set of words that have been around since 1960. Those set of words were drawn up by Parliamentarians, some who sit at this table were present, most of us were not. But that was done soon after World War II when I think Canadians generally, and the societies of the world, were more conscious than perhaps we are today of the tragedy that can befall mankind when certain principles are ignored, and that set of words which was drawn up on that occasion and has been present in our citizenship court since

[Page 14]

that time are quite a different set of words, and they carry quite a different meaning, and I think they meet some of the concerns of many of the witnesses who have appeared here before us.

Constitution writing should be an exercise that adds to the strength of the nation rather than detract, and those words say as follows:

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,

In that first clause the word “free” appears twice and if we think of the context of 1960 following World War II, the importance which society was placing at that time on free and on freedom, and it goes on to say:

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

I suggest to the members around this table that that set of words may not be a set of words that any one of us would choose but it is a set of words that provide a context for a charter of rights and freedoms that is considerably better than the context which the clause, as it now sits, provides, and that we should be very, very careful in this climate of stress that we, as individual members of Parliament charged with the responsibility and the obligation to attempt to arrive at a set of words, we should be conscious of that responsibility to attempt as best we can to provide Canadians with a new constitution that will, in fact, carry some elements of inspiration with it.

I sat here yesterday and I heard the Minister speak on behalf of the government and the tone of that speech was in opposition to the addition of the words, and that opposition I think was founded on two principles and I would like to deal with each of them.

The first principle was that during the course of the summer in the First Minister’s meeting, the First Ministers could not agree on a set of words that might set the tone and set the stage for this act, and we on this side of the table have no disagreement with that assertion, that during the course of the summer agreement that was not possible. But that does not seem to have stopped the government from the changes they propose to Parliament, it does not seem to have stopped the government from proceeding on a course of action that goes far beyond disagreement, that in fact has resulted in six of the partners of this Confederation taking the federal government to court. For the government to use the argument that agreement was not possible in the summertime as an excuse for avoiding the responsibility and the obligation to attempt to set in inspirational language some kind of beginning for this constitution is simply not acceptable.

You cannot use the argument that it is all right to proceed in the face of the fact that six provinces are taking you to court and then attempt to argue that a particular portion of this constitution does not belong simply because people cannot agree to it. I suspect, and I say to the Minister, that the insertion of this set of words at the beginning of Clause 1.

[Page 15]

would be a great deal more agreeable to the partners of Confederation than the over-all course of action in which the government has embarked.

The second principle which was enunciated by the Minister on behalf of the government was that what we are engaged in now in the government’s view is a first step in constitutional renewal. The logic of that I think runs somewhat as follows: that if we leave a gap, what the Minister is saying to us in the context of first step is that in second step we can fill in the gap.

If that is the logic of the Minister, then I counter with the following: if we put in a set of words now and we move to the second step, we can change that set of words. If we find a set of words that meet our purpose better, then we can change the words. You can change a gap; you can change an absence of something into something; you can change something that is already there into something more suitable and, in fact, you can take it out if that is the change which step two, in the Minister’s words, would lead us to.

I think we are at a crossroads. We are on Clause 1; we are at the first amendment proposed by the members of the Official Opposition of the Parliament of Canada. Those are not a set of words which will have impact in any large measure and perhaps in no measure on the law in this country. Certainly they are a set of words which will interfere with the partners of Confederation much, much less than other sets of words which we find in this bill.

All we seek to do on this side of the House is to meet our obligation, one which was expressed to us by many of the witnesses who appeared before us who asked the members of this Committee to take seriously their request that somehow in some fashion in this constitutional renewal process we make an attempt to lift the soul, to lift the hearts of Canadians.

We are not asking a great deal from the government majority. We have given no indication that changes in words would be unacceptable to us, but I think we sit on this side of this table at this time determined to meet our obligation to the Canadian people; that a constitution is not a statute; a constitution is a document that new Canadians can feel proud of, that old Canadians can feel proud of, the kind of document that children can be shown early in their school career that will help build their sense of commitment to the nation and to each other.

I ask the members opposite whether or not votes on this particular amendment can be justified along party lines or whether each person has to look at their own conscience to make a decision on how to vote in that context. Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): The honourable Mr. Crombie.

Mr. Crombie: Mr. Chairman, I was waiting for a reference from the library. Is there any opportunity for somebody else to speak and then you could possibly come back to me?

The Joint Chairman (Senator Hays): We are ready to vote on the amendment.

[Page 16]

Mr. Crombie: Am I the final speaker?

The Joint Chairman (Senator Hays): Yes.

Mr. Crombie: Perhaps I can do without the reference from the library.

Yesterday I had the opportunity to listen to the objections raised by the Minister, Mr. Robinson and Senator Austin about the inclusion of the amendment placed by Mr. Epp with respect to the Charter of Rights.

My notes indicate that the reason Mr. Austin was concerned about it was that, in his view, the issue was whether or not the wording used by Mr. Epp, taken from the Diefenbaker bill of rights, was relevant to a charter of rights, and that perhaps it was more relevant to the preamble to a constitution.

Senator Austin was trying to suggest that it might be better if it were done in that way.

The objection by Mr. Robson was that there were a lot of people who did not believe in God, and therefore it should not be included and that any such inclusion would diminish their rights as a consequence.

The Minister’s objection was that there was no agreement in the Cabinet and that there was some difference between the French and English versions.

Out of all that, Mr. Chairman, my concern was that the point of having the phraseology suggested by Mr. Epp was being forgotten. There are some things I would like to draw the attention of the Committee before they are forgotten, and if our motion is to be voted down—a matter about which I would be very sad; but I hope the point of having the suggested phraseology of Mr. Epp’s is not forgotten.

The reason why, Mr. Chairman, we put in the wording is for the very same reason that the wording for all constitutions, in the Western World at any rate, have always included some suggestion that there was a power beyond a government power. In all laws—in all laws-particularly constitutional laws, there is not only the letter of the law, but the spirit of the law; and the spirit of the law comes from the recognition that there is a supreme being—a God, a life force, an entity, whatever phraseology people would care to use, to indicate that beyond people and beyond governments there is another authority.

Constitutions are made up of the values, interests and beliefs of the people that that constitution is supposed to govern. It cannot do so unless the fundamental source of the principles upon which that society rests are articulated clearly.

That is why the first point I would like to make is that, unless you have principles relating to a supreme being, to the dignity and worth of the human person, to the position of the family, a recognition of spiritual values, then the laws will not be animated by the spirit that they are supposed to be.

The second reason, Mr. Chairman, is that ironically—and I say that in relation to Mr. Robinson’s intervention the other day—when you look at certainly the European tradition, you will find that all the constitutions made an appeal to spiritual as well as to temporal powers for the simple reason that it allowed opinions other than those of the government to prevail.

[Page 17]

When I put questions the other day to the Minister, I was not doing so idly, when I asked him whether or not he thought rights came from government or from some other source.

The fact of the matter is that our rights do not come from government, but from other sources; from tradition, from God, or whatever other word you would care to use to indicate that there are powers beyond the government and people.

That second point, that we use an appeal to spiritual as well as temporal power has allowed people to differ with governments. The essential kernel of the western liberal democratic faith is such that dissent is allowed from government, and dissent has come by an appeal over governments to God. That is the history of our tradition.

Every major departure in our understanding of how we ought to change has come from an appeal to a higher authority than the government that has been oppressive to us.

Ironically—and I say ironically in relation to Mr. Robinson’s intervention-that appeal to higher authority has allowed for freedom and dissent to occur.

Mr. Chairman, beyond the question of making sure that the constitution is rooted in values, interests and beliefs that we agree on, and beyond the question of making sure that we have a supreme being that we can appeal to for dissent, the third reason why there ought to be that preamble recommended by Mr. Epp is that those who are interested in change and pluralism, as Mr. Robinson is, must know that the only way in which change and freedom and variety occur is on the basis of law, order and continuity.

If there is no law, order or continuity, then there is not the change, not the variety, not the pluralism that Mr. Robinson and others would like to have.

That is why that premable is necessary. It is necessary for a fourth reason, and that is that at least in this country, when it comes to a bill of rights, it is the only bill of rights we have ever had and all we ask in our motion is that the preamble to the one bill of rights we have ever had, that we continue it. God knows, Mr. Chairman, that this country has few enough symbols that unite us.

It is only a short generation ago that we had a bill of rights which carried exactly this preamble to its rights section. A generation later we want to cut it out!

So, let me say to you, Mr. Chairman, that the reasons constitutions from time immemorial have included a preamble to a supreme being, to the integrity of the individual, to the family, to spiritual powers, have been first of all to make sure that we reflected the values, interests and beliefs that our community holds.

Secondly, it became a guide to judges who, when they look, for example, at the proposed Clauses 1, 2, 3, 4 or any other of the proposed sections dealing with legal rights, they would be interpreting those sections and if they know that the framers of the constitution meant that the family was an institution which was sacred to the nation, they would interpret those rights in the light of the fact that we make mention of the family as an

[Page 18]

institution. If they make their interpretation in relation to Clause 15, they would be allowing those who have been held up in the past to speed up more quickly in the future and they would make that in the context of the preamble which has been suggested by Mr. Epp.

The third reason that it is a guide to practical application for courts, and finally there is the one tradition we have in the bill of rights-I think all of those, Mr. Chairman, are extremely important reasons why we should maintain the preamble in the Diefenbaker Charter of Rights as outlined in Mr. Epp’s motion.

Finally, let me say that the reason I am concerned about it this morning in particular is that I have the feeling that, despite the protestations of Senator Austin and, indeed, the Minister, that it is going to come back some time and we are going to be able to get one, I worry very much that that might not be true; that however we may think that is so, my reason for not believing them—although I wish I could, though I think they mean it sincerely—is that they have put the cart before the horse already.

Specific rights do not give you fundamental principles. Fundamental principles give you specific rights. If you do not start with those fundamental principles, then my concern is that you will not end up with them either.

So, when we vote today we are voting on whether or not we are going to have those values and beliefs in a constitution. The delay is simply a way of saying no.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Crombie.

Mr. Mackasey.

Mr. Mackasey: Mr. Chairman, I raise a point of order with a view to getting some clarification and not to question the wisdom of Mr. Crombie’s contribution and not to speak to the clause.

We will be voting on this today. Are there any other speakers who would like to speak on this?

The Joint Chairman (Senator Hays): One more speaker.

Mr. Mackasey: Well I will defer to him.

The Joint Chairman (Senator Hays): Mr. Epp.

Mr. Epp: Mr. Chairman, I understand from the rules you have established, Mr. Chairman, that when the mover speaks a second time that ends debate. Does that cause any difficulty for Mr. Mackasey?

Mr. Mackasey: That is not my point. It has nothing to do with how many times I speak.

Mr. Epp: Very well.

Thank you, Mr. Chairman. I am going to make one more attempt to convince members of the Liberal party of the wisdom of what we are proposing—because they are not our words, but words agreed to by former Parliaments, and have become part of the Canadian tradition: Mr. Chairman, what we are asking is that, as so ably put by Mr. Crombie, we recognize the sovereignty of God in the nation.

[Page 19]

Let us go back to how the nation was founded. After the Charlottetown conference and as they went to the Quebec conferences, the Fathers of Confederation studied the 72 resolutions.

At that time one of the burning questions was what name should they give to the country. Obviously it was going to be Canada. But was it going to be the Kingdom of Canada or Canada only. What was it going to be?

At that time one of the Fathers of Confederation, as he was participating in the debates, was also seized with this problem and question, of what for future generations will you call this country-Canada. It was his habit, Mr. Chairman, to have his daily devotions and to read for his own spiritual purposes every morning from the holy scriptures.

You will find, Mr. Chairman, that from those personal devotions of one Father of Confederation, a legacy has come down through our history which we today want to deny. That legacy is this. AS Tilley was having his devotions daily, he came: across Psalm 72, Verse 8. that verse reads as follows:

And He shall have dominion from sea to sea and from the river to the ends of the earth.

We became known as the Dominion of Canada and therefore had in our coat of arms the motto “from sea to sea”. That is our history, that is our tradition.

Mr. Chairman, this nation was founded on those principles and the Fathers of Confederation saw it necessary and saw it wise that the nation of the future, if it was to be united, had to recognize the supremacy of God, and they recognized it in that motto. In fact, Mr. Chairman, you will find in various places in the Parliament buildings, which were reconstructed after the fire of 1916, and so which date back to the 1920s, you will find scattered throughout the Parliament buildings in stonework, in carvings in wood, this motto and derivatives of that motto.

I take it that if we vote today against the amendment that means nothing and that the past is over.

We have always prided ourselves that we are a nation under god, we have always prided ourselves that we are a dominion from sea to sea and to the northern sea, and that was given expression, I suggest, by the Fathers of Confederation who in their wisdom built it better than they knew.

Today we want to deny that. Those spiritual values are not important for us any more to put them in as guidelines from which our constitutional amendments, our constitutional provisions shall flow. So what we have today, Mr. Chairman, is, I guess what we can say is that there is none so blind as he who will not see, he who will not see the past and who then, I suggest, will have difficulty in building for the future.

[Page 20]

Mr. Chairman, throughout the past one can also look at the philosophers, the wise men of the past who also looked at these questions, and I suggest to you today, Mr. Chairman, that we are facing something similar to what Euripides said: for those whom God wishes to destroy he first makes mad. Is it power that is making them mad?

Mr. Chairman, what we are facing is not the desire for a Canadian constitution; what the government wants is a Trudeau coonstitution, that is what they want.

Mr. Mackasey: Mr. Chairman, on a point of order.

Is this relevant? You, Mr. Epp, made the point very astutely and very eloquently yesterday that we would stick as close as possible to the issue and now we are talking about the Prime Minister and his motives; that is hardly, Mr. Chairman, I suggest relevant.

It might have been acceptable in the latitude in the general discussion of a week or two ago but hardly the moment right now.

Mr. Epp: Mr. Chairman, if I can continue after that intervention, what I am pointing out to Mr. Mackasey is that you are denying your past and you are using the majority that you have to insist precisely that only your vision of a constitution shall prevail.

The Prime Minister and Mr. Chretien have said there will be no further amendments and today we are seeing proof of that statement.

I say to you, Mr. Chairman, that if they vote against these amendments, only history will condemn them.

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

Mr. McGrath: On a point of order, Mr. Chairman. We feel very strongly about this amendment, we are not going to be seeking recorded votes on every amendment that comes up for a vote, obviously, but on this particular one we would like to know where each member of the Committee stands.

The Joint Chairman (Senator Hays): Is that agreed, we have a recorded vote?

Some hon. Members: Agreed.

The Joint Chairman (Senator Hays): Agreed.

Mr. Mackasey: Mr. Chairman, I want to know what I am voting on. The point I am making is an important one to me. The next that I have in front of me, and I am trying to help the Conservatives, has imperfect translation and I think it should be rectified before we vote on it, or understand what we are voting on and at least translate it later, because in the English we have “Canada”, and if it has been changed since last night, I would appreciate it, but in the French we do not. We have the Canadian nation in one version and Canada in the other

[Page 21]

The Joint Chairman (Senator Hays): Mr. Mackasey, on your intervention, if you do not like the translation you might feel free to vote against it.

Mr. Mackasey: Mr. Chairman, in all fairness to your wisdom that is not a very wise remark and there is something much more fundamental in your suggestion, and the suggestion is that we should know, it should be precise because either one version or the other is inaccurate through a mistake in translation and it is .up to the opposition to tell us which is the official version, and then we can translate it.

The Joint Chairman (Senator Hays): On the same point of order I have Mr. Crombie.

Mr. Crombie: Mr. Epp may have made a comment on it already, but yesterday when the matter was raised by the Minister he indicated there was a difference between the French version and the English version, we agreed to have the same thing said and he used the words-Senator Tremblay intervened and I do not know where Senator Tremblay is right now, but I want it clearly understand that it is not our intention to have any difference between the two translations. I thought it was agreed to yesterday, and the English is the one that was intended.

So it should be translated, I think the Minister translated the words yesterday into the record, but at any rate I would not want anyone to have to vote, Mr. Chairman, on such a fundamental point as to what are the fundamental principles animating the constitution so that he could not deal with it because of a difference in translation.

It is our intention to have it mean the same thing in both languages and I would ask the Clerk to make sure that the wording is …

Mr. Mackasey: Canadian nation?

Mr. Crombie: Yes.

Mr. Mackasey: And not just translated into Canada.

The Joint Chairman (Senator Hays): The Committee is agreed on a recorded vote?

Some hon. Members: D’accord.

The Joint Chairman (Senator Hays): The vote is on the Conservative amendment.

Amendment negatived: Yeas, 10; Nays, 14.

Negatived on recorded division, 4-5

The Committee resumed consideration of the motion of Mr. Epp, 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

(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, the question being put on the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Nurgitz
Roblin

[Page 5]

YEAS:

Crombie
Epp
Fretz
Hawkes
McGrath
Nystrom
Rose—10

NAYS:

The Honourable Senators

Austin
Cottreau
Goldenberg
Lucier
Petten
Rousseau

NAYS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Gimaiel
Irwin
Joyal
Lapierre
Mackasey—14

January 22, 1981: Lorne Nystrom & Svend Robinson, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada on Svend Robinson’s Amendment, p. 21

The Joint Chairman (Senator Hays): We will now deal with Clause 1, the New Democratic amendment, and I will invite Mr. Nystrom.

Mr. Nystrom. Mr. Robinson is not a member and I just recognize him, I am sorry.

Mr. Nystrom: In my capacity as Whip I have just put Mr. Robinson on the Committee, Mr. Chairman.

But in the meantime, while you are being notified officially of that, I would like to move that Clause 1 of the proposed

[Page 22]

constitution act as amended, be amended by adding immediately after the portion of line 3 on page that reads “claims set out in it” the following:

and the equal right of males and females to the enjoyment of those rights and freedoms,

And with your permission, Mr. Chairman, I would like to ask our justice critic, Mr. Robinson, to outline the reasons why we are presenting this amendment to the Committee.

Mr. Robinson: Thank you, Mr. Chairman.

I will now read the proposed amendment in French. I move that Section 1 of the proposed Constitution Act, 1980, be amended by—

January 22, 1981: Svend Robinson, Serge Joyal (Chairman), Senator Hays (Chairman), Lorne Nystrom, Jim McGrath, Senator Asselin, Senator Roblin, Jake Epp, Bryce Mackasey, David Crombie, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada on Svend Robinson’s Amendment, pp. 25-37 & Jake Epp’s amendment pp. 35-37

Mr. Robinson: Thank you, Mr. Chairman.

I was proposing an amendment in French to Clause 1 and I will repeat it.

That Clause 1 of the proposed Constitution Act of 1980 be amended by

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(a) adding immediately after the portion of line 3 on page 3 that reads “-doms set out in it”, the following:

and the equal right of males and females to the enjoyment of those rights and freedoms,

(b) striking out, on page 3, the part reading” “subject only to such” as well lines 4, 5 and 6.

Mr. Chairman, there are three major concerns which we are attempting to address in proposing this amendment and, naturally, in the course of questioning the Minister, a number of those …

The Joint Chairman (Senator Hays): Order, please.

The Joint Chairman (Mr. Joyal): I am sorry to interrupt you, Mr. Robinson, but there has been a modification that your party has brought to your amendment that has removed some words that you have just read, and in conformity with what we have voted on yesterday and this morning, I think that you should remain on a sense of the new text because otherwise I will have to rule out your amendment.

I would invite you to read the proposed amendment that your party has modified it to take into account what we have voted on yesterday, and I would like you to read it again so that members around the table know exactly on what they are voting.

Mr. Robinson: I do apologize, Mr. Chairman. I was looking at the amendment prior to the changes which were voted upon yesterday.

Taking into consideration those changes then, the motion would read as follows:

That Clause I of the proposed constitution act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

and the equal rights of males and females to the enjoyment of those rights and freedoms,

The Joint Chairman (Senator Hays): Would you read it in French also, Mr. Robinson?

M. Robinson: En francais?

Le copresident (senateur Hays): Oui.

Mr. Robinson: Mr. Chairman, it is proposed:

that Clause 1 of the proposed constitution Act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “”-doms set out in it” the following:

and the equal right of males and females to the enjoyment of those rights and freedoms.

Mr. Chairman, I would point out that this does insert at the end of line 3-there has been some question about whether or not this does adequately take into consideration the proposed amendment.

The Joint Chairman (Senator Hays): Order, please. Mr. Robinson, we established quite some time ago that we should have these amendments in writing in both French and English. The chair and the members should have them. I am going to permit you to go on this morning but I think from now on

[Page 27]

when we have amendments that we should have them and they should be circulated.

Go ahead.

Mr. Nystrom: My understanding, Mr. Chairman, is that they have been circulated.

Mr. McGrath: Mr. Chairman, maybe the NDP are having problems getting their act together, but we still have the work of the Committee to think about.

The Joint Chairman (Senator Hays): Go ahead, Mr. Robinson.

Mr. Robinson: Mr. Chairman, I am sorry, there has been some suggestion that perhaps the French version does not exactly replicate the English version. Now I would have hoped that in the course of translation that that would be the case.

Senator Asselin: You have to have the words of the French version,

ainsi que le droit pour Ies femmes et les hommes ainsi que le droit egal pour les femmes et les hommes. In this you have the equal rights of males and females.

Mr. Robinson: Mr. Chairman I really must confess to some confusion at the remark which has been uttered. I am trying to deal with Senator Asselin who has suggested that the French version does not reflect the English version. Now if that is the case, naturally one would want to change that but if Senator Asselin has an interjection, you might wish to deal with it, Mr. Chairman.

Senator Asselin: The remark I was making, Mr. Chairman, was to the effect that the English version does not correspond to the French version. In English you have “and the equal right of males and females to the enjoyment of those rights and freedoms” and in French you have “and the right of females and males to enjoy them equally”. I think the translation does not reflect the English version.

Mr. Robinson: Mr. Chairman, perhaps, the Conservatives …

Le senateur Asselin: «Hommes et femmes » as opposed to “males and females” …

The Joint Chairman (Mr. Joyal): No, it is not the point.

The Joint Chairman (Senator Hays): On a point order. Mr. Joyal.

The Joint Chairman (Mr. Joyal): I understand the question as raised by honourable Senator Asselin. Senator Asselin is saying that in English we have “equal right” while in the French version we have “droit” which is only “right”. But honourable Senator Asselin will notice that the words “egalite” refers to the equal to qualify the term “right” and I think that it is a translation which is certainly admittable to take into account the fact that equality or equal should refer to the right or the way that right is enjoyed and I am satisfied certainly with the French version but there could be another version that could be sustained to, but I think that this one takes into account the proposed motion by the NDP.

The Joint Chairman (Senator Hays): Senator Roblin.

[Page 28]

Senator Roblin: I am a little confused, Mr. Chairman, because I think that the wording of the English amendment seems to refer to the original form of the clause rather than the amended form of the clause. The French one does not. The French one is correct, but it seems to me that the words “doms set out in it” are taken from the original wording of this clause and not from the amended clause that was adopted yesterday.

Now this is just a technicality and I am sure my honourable friend can straighten it out, but it seems to me we have that problem.

The Joint Chairman (Senator Hays): Mr. McGrath.

Mr. McGrath: Mr. Chairman, on a point of order. I think this point has to be made and it is as well that it be made now.

We worked very hard, well into the night over the weekend, to get our amendments prepared so that they would be before the Committee in terms of the legal technical language of the amendment, in terms of the translation in order to facilitate the work of the Committee. Now we are running into difficulties because the NDP were not ready with their amendments and I think that that is not fair to the members of the Committee, quite frankly. It is certainly not fair to our party because we laid ours out, we worked hard to prepare them and bring them here, everybody had a chance to get them, including the Clerks, and now we are getting amendments from the NDP piecemeal; and I submit to you that we are going to be running into this problem again and again as we proceed, unless of course they can figure out which side they want to be on, the government’s side or our side.

The Joint Chairman (Senator Hays): Mr. Epp, do you have a point?

Mr. Epp: Well, I just want to absolutely concur with what Mr. McGrath said.

But another point that I have to make and I think a lot of us already are discovering that this Committee is very different from those that we have been on in the past. The problem is this, not the membership, I do not suggest that, but it is this: that in other Committees the government puts forward its bill or resolution; the opposition parties put forward their amendments, and the government will telegraph when they will move amendments. What the difficulty is that the government did not move amendments but forward their amendment package. We responded generally to the amended package which has not been passed and I think there has to be one understanding and it was done yesterday, and I want to repeat it, and I am not trying to make the point again, and that is that flexibility has to be there in terms of when an amendment is moved that if it refers to the original or refers to the amended version, that the members of the Committee will have to be flexible on that point.

That is quite apart from the point that is made, that the amendment, if we have them before us, at least we can do some preparatory work beforehand. It is not only for our own thoughts but also in terms of response, and that is making it very difficult.

[Page 29]

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

Did you have a comment, Mr. Nystrom? Mr. Robinson?

Mr. Robinson: Mr. Chairman, I do apologize to members of the Committee, apparently I have been informed by the people that have been assisting us in drafting and I might say in passing that I want to echo the remarks of Mr. Epp on the question of drafting. We have received outstanding service, in particular from Edith MacDonald and also from Gerard Bertrand under very, very difficult circumstances, to say the least. They have been working late into the night and certainly we are deeply grateful for the assistance that has been provided and is continuing to be provided to us.

I would like to clarify that there is an error in the proposed Clause 1 that you have before you. Indeed, the point that was made is accurate. In line 3 it should state, instead, as it reads “doms set out in it”, it should refer to the new line 3 and read “rights and freedoms set out in it” and then it would continue with the words “and the equal right” et cetera. If the Clerk could make that change.

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

Mr. Robinson and Mr. Nystrom, maybe on the points of order that have been raised, that you would try and accommodate the Committee as you have done in the past with getting your amendments earlier to the Committee, it is a suggestion that would facilitate our work. We have now wasted about 15 or 20 minutes on this procedural matter and it seems to me that if we had them early enough, as honourable members have suggested, it would facilitate our work. Now would you proceed with your amendment, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman. Just for the record, I think it should be clearly understood that Clause 1 was indeed circulated yesterday, Mr. Chairman, and not today. There was an unfortunate error but I do not think that the record should indicate that it was not circulated yesterday, our proposed amendment to Clause I in both official languages.

The Joint Chairman (Senator Hays): Mr. Crombie.

Mr. Crombie: It is only a question that deals with the wording and I offer no comment on it, just the wording. It is between the English and the French version. The English version was singular when it came to female. Has that been changed?

Secondly, the French version is “women” and then “men”, and in the English it is reversed. I wonder whether that is just a question of taste or politics.

The Joint Chairman (Senator Hays): Mr. Robinson.

[Page 30]

Mr. Robinson: We were not intending to restrict this to one particular female; certainly we did not intend to restrict it to one English female.

So, I would certainly agree it should read “females”.

The Joint Chairman (Senator Hays): Will you proceed with the amendment.

Mr. Robinson: I will try, Mr. Chairman.

The Joint Chairman (Senator Hays): Mr. Robinson, we are waiting for you.

Mr. Robinson: Mr. Chairman, the reason for this proposed amendment to Clause 1 is the following. First of all, it is our submission that the general test which now is in that amended version of Clause 1 being proposed by the government, does not adequately reflect the different types of rights and freedoms which are contained in the proposed Charter.

There are some rights, some freedoms, which should never be derogable, even in times of emergency. They include, for example, the right to protection from cruel or inhuman treatment or punishment. They also include, for example, the freedom from discrimination on the ground of race, colour, sex-in the denial of legal rights under emergency conditions.

Mr. Chairman, it has been suggested by many witnesses and I would point out that those witnesses include the National Action Committee on the Status of Women, the Canadian Advisory Council on the Status of Women, the Canadian Federation of Business and Professional Women of Canada; the submission of the Dalhousie Law Professors, the Canadian Jewish Congress; the New Brunswick Human Rights Commission; the Canadian Civil Liberties Association; Walter Tarnopolsky; Gordon Fairweather; the Canadian Bar Association-many, many witnesses, Mr. Chairman, have proposed that there should be no derogation from certain rights and freedoms in this Charter.

In addition to that, Mr. Chairman, I would like to draw to the attention of members of the Committee the 1978 report of the Lamontagne-MacGuigan Committee, which was considering the proposed Bill C-60.

In that report—and I would like to quote from that report and hope that the government will listen to the concerns which were expressed by that particular Committee:

The case for justifiable limitations on rights by the War Measures Act applies principally to political rights and freedoms in Clause 6 rather than to the legal rights and freedoms of Clause 7. Many of the more precise legal protections in Clause 7 should not require limitation even in war time crises. For example, we do not see how the state could ever be justified in imposing cruel and unusual punishment.

I am reading now from the report that was submitted on Bill C-60 dealing with this precise point.

In our view, any limitations on the protected rights should be exactly spelled out in the Charter.

[Page 31]

They very clearly state that there are some rights which can never be abrogated under any circumstances.

Mr. Chairman, that is the purpose of our proposed limitation on this Clause.

Now, it is somewhat difficult to deal with our proposed amendment to Clause 1 without dealing at the same time with our proposed Clause 30, which is the new limitations provisions.

Honourable members have our proposed Clause 30 in both languages before you. I am in the hands of the Chair, but I would like to suggest that it might be appropriate to deal with this proposed Clause 30 at the same time, because it is a proposed limitations clause.

Mr. Chairman, I seek your guidance on that, but I would certainly hope that Committee members would agree to deal with this proposed Clause 30 at the same time and I could make my arguments on that which are virtually the identical arguments on Clause 1, and they could both be disposed of at the same time.

The Joint Chairman (Senator Hays): I suppose we would need the unanimous consent of the Committee if we were to go that route.

We would have to stand all the clauses until we get to Clause 30.

What is the feeling of the Committee?

Mr. Mackasey: Mr. Chairman, I do not know if Mr. Epp heard, but the proposal is that we link Clause 30 with the discussion on Clause 1 …

Mr. Robinson suggests we deal with Clause 1 and Clause 30 at the same time. It would require the unanimous consent because we would be moving to Clause 30 and then back to Clause 2. It would certainly expedite our business.

The Joint Chairman (Senator Hays): Mr. Crombie.

Mr. Crombie: Am I correct in understanding that what is being said is that we have to conclude our discussion on Clause 30 as well or only deal with Clause 30 in so far as the motion from Mr. Robinson is concerned?

The Joint Chairman (Senator Hays): That is right.

Mr. Crombie: That is all you are saying. Then that is all right.

So you do not have to stand down all the clauses to deal with Clause 30. Only within the motion would Clause 30 be changed to the extent that we adopt the motion moved.

The Joint Chairman (Senator Hays): If we accept the amendment.

Mr. Robinson.

Mr. Robinson: I thank honourable members of this Committee for that agreement.

If honourable members of this Committee would then refer to the proposed amendment to Clause 30…

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The Joint Chairman (Senator Hays): We are dealing with Clause 1. If we deal with Clause 1, then we can go to Clause 30. Would that not be the correct procedure?

The Joint Chairman (Mr. Joyal): And I want to make it very clear, Mr. Robinson, that we should first address ourselves to Clause 1, the amendment you have proposed, and taking into account what would happen with this amendment, then we will move to Clause 30.

But the Chair certainly is not prepared to entertain two amendments at the same time.

We have to address ourselves to one amendment first, which is the amendment which you have just read pertaining to Clause 1. Depending upon what happens on the result of the vote on that amendment, then if it is accepted the Chair will invite you to go with the amendment you are proposing on Clause 30.

But at this point, the Chair would not want to receive two amendments at the same time.

Mr. Robinson: I understand that.

That, with respect, was my understanding of the agreement with the Committee. But I am merely pointing out, Mr. Chairman, that the effect of our proposed amendment to Clause I would be to delete any limitation whatsoever from Clause 1; it would be to make a statement that this Charter of Rights and Freedoms guarantees the rights set out in it, and also guarantees them equally to males as well as females.

The Joint Chairman (Senator Hays): I am sorry. On a point of order, Mr. Epp.

Mr. Epp: Mr. Chairman, I frankly do not know the course that you are embarking on, how we are going to get any agreement simply on process, much less on amendments.

I think Mr. Robinson has now clearly pointed out that they intend to move amendments at the appropriate time where they would delete all or any part of any limitation. That is his right; but I think that should be done at the time the clause is called.

The Joint Chairman (Senator Hays): Go ahead, Mr. Robinson.

Mr. Robinson: Mr. Chairman, that is what is being done. The proposal with respect to Clause 1 is to remove the limitation provision from Clause 1. I think it would be somewhat artificial in that context not to make any reference whatsoever to what is intended to be done on limitations.

If Committee members are to consider the merits of this particular amendment, the first question which will spring to mind is that if you are getting rid of any limitations in Clause 1, how can we possibly support the amendment without knowing if there is going to be another limitations clause. Clearly, that should be understood. I only refer to Clause 30 for that purpose.

The Joint Chairman (Senator Hays): Proceed.

Mr. Robinson: As I say, the proposal is that Clause 1 of the proposed constitution act should be a simple, affirmative statement, guaranteeing all rights and freedoms set out in the

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Charter, and in particular, guaranteeing the equal rights of males and females to the enjoyment of those rights and freedoms.

The reason for the addition of that particular clause is in response to the excellent suggestion of the Canadian Advisory Council on the Status of Women and others, modified, instead of “men and women” to read “males and females”, recognizing that discrimination on the basis of sex can occur also with children—a point which was made by the Canadian Council on Children and Youth.

Mr. Chairman, the reason for this, as I say, is first of all we believe that the first Clause in a charter of rights should be an affirmative clause setting out the rights that are guaranteed, and then that there should be an affirmative statement, and a limitation clause is not appropriate at the beginning of a charter of rights—a statement of the fundamental rights and freedoms of Canadians.

The Minister has suggested that it is perhaps more honest to put it at the beginning.

Well, Mr. Chairman, with respect, that does not deal with the argument that if it does not make any practical difference then there is great symbolic difference in setting out rights affirmatively and at the conclusion indicating what rights may be limited.

Mr. Chairman, there are two other concerns with respect to this matter. I believe-and it has been suggested by a number of witnesses—that there should be two different tests; one test should apply to fundamental rights and freedoms, the Clause 2 rights and freedoms, for example the mobility rights; and a second, more stringent test, which should apply to legal rights, which can only be taken away according to our proposal in time of public emergency which threatens the life of the nation or any part thereof and there would have to be a statement forwarded to Parliament and Parliament would have to vote upon it and there could only be derogation to the extent strictly required under the provisions of proposed emergency legislation.

That would be the case with legal rights and we would exempt a number of legal rights from that possibility of derogation.

I would like to give one reason for the distinction. The proposal by the Government deals with the words “proclaimed by law”. It has been very clearly stated that “proclaimed by law” is not restricted to statute law, but can also apply to common law as evolved by the courts, and would also include regulations.

Mr. Chairman, in the case of, for example, the War Measures Act, what many people are not aware of is that after having proclaimed the War Measures Act, the government can go in some cases up to a year without having to report back to Parliament.

Surely, when we are dealing with a War Measures Act, which it has been suggested is going to remain in full force and effect, not challengeable in any way by this Charter of Rights,

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surely there should be some restriction whereby the government would be forced to come back to Parliament at the earliest possible opportunity—and I repeat that: the earliest possible opportunity-and seek Parliament’s approval for the derogation of any legal rights which may exist.

Now, that is not required, as I say, under the War Measures Act at the present time.

If the House is not in session, the government can proclaim a state of emergency, whether or not it exists; there is no requirement to call Parliament back into session. So that is an additional reason for the proposed amendment contained in Clause 30.

Finally, Mr. Chairman, I have indicated a concern that there should be and in fact are some fundamental rights and freedoms which at no time should be derogable.

As I have indicated, witness after witness appeared before this Committee to make that point. I believe we, as a Committee, should heed those concerns.

I am not aware of any witness whatsoever who recommended that all rights and freedoms contained in the proposed Charter of Rights should be subject to derogation, even on a demonstrable justifiability test.

I have referred to the 1978 report of the MacGuigan-Lamontagne Committee which made that point as well, and I would like also to draw to the attention of members of this Committee the recommendations of the Government of Canada in February, 1979, which accepted that principle, that there were certain fundamental rights and freedoms which could never be derogated. The July 1980 statement, the recommendation of the federal government at that time, recognized very clearly that there were certain fundamental rights and freedoms which were so important that they could never be derogated from.

The question is: why is the government stepping back from this very sensible suggestion—a suggestion which is in line with the provisions of the International Covenant on Civil and Political Rights?

Mr. Chairman, I will conclude by saying that the proposed amendment, which I hope will be seriously considered by members of the Committee, would attempt to meet three basic concerns: it would give an affirmative statement in Clause 1; it would set out the fact that there are certain rights which could never be derogated; and it would establish two different tests where appropriate for the different clauses of the Charter.

Thank you very much, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you.

Mr. Epp, on the amendment.

Mr. Epp: Thank you, Mr. Chairman.

This amendment causes me some difficulty. I would like to spell out why-not amendment in the words that Mr. Robinson wants to add. There are two concepts at work here, and I know that is why he referred to Clause 30. There are two concepts: one is the need to express in the constitution the equality of men and women. I support that wholeheartedly. I think members would generally.

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But in order to make that point, Mr. Robinson then deletes the limitations clause.

I am also for a parliamentary system; I am also for reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society, and for a democratic society. Yet, you eliminate all of those to put in another—I suppose I can call it “right”, though “recognition of equality” might be a better way of putting it; and when I look at Mr. Robinson’s Clause 30—and with due respect, I am not trying to bootleg back Clause 30 in—but when we get to Clause 30, would that satisfy my problem? Would that rectify my problem? No, it does not; because I do not agree in total with the amendment to Clause 30 either in terms of the limitations.

That is why there is the difficulty on that basis that we face, Mr. Chairman, because I am giving this some thought now while I am sitting here; and I do not think some of these concepts should be dealt with here that cavalierly.

So what I will be doing, I want to tell Mr. Robinson, while I support the addition of the words, I have difficulty with the deletion of the words and his substitution in Section 30 and so I will, Mr. Chairman, after you have finished the process, I will move that we stand this clause until Mr. Robinson has had an opportunity to bring forward his proposal in Clause 30.

The Joint Chairman (Senator Hays): Senator Roblin.

Senator Roblin: Mr. Chairman, I am a little bit confused by what Mr. Robinson has told us because I do not quite follow the line of argument that he has being giving us.

I am trying to find out what the amendment actually consists of. As I look at the written paper in front of me, it says that you add immediately, after the end of line 3, the words “and the equal right of males and females to the enjoyment of those rights and freedoms”, but it does not say what you do with the rest of the sentence.

Now, I take it from what he has been saying to us that he deletes the rest of the sentence but that is not what the amendment says and I would like to know what the facts are before I go any farther.

Mr. Robinson: That is correct.

Senator Roblin: He tells me that it is correct so the clause as amended, if this amendment were accepted, would then read as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it and the equal right of males and females to the enjoyment of those rights and freedoms.

Mr. Robinson: Right.

Senator Roblin: And any suggestion of a reasonable limitation prescribed by law that can be demonstrably justified is disgarded.

Mr. Robinson: That is Section 30.

Senator Roblin: But in the amendment that we have in front of us, and that is all I am going to address myself to at the

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moment, that is what it actually would look like if we were to adopt your amendment. Well, I think it does cause some problems.

Mr. Nystrom: Excuse me, Mr. Chairman, on a point of order, I would like to suggest that we accept what Mr. Epp has said, that we stand this. Mr. Epp has said when he was speaking, if I can say a few words on the amendment, that what Mr. Robinson is doing here is deleting the limitation clausee and that, Mr. Chairman, is not the case and that is why we made the argument that we are going to be adding and proposing our own limitation clause, Clause 30, and we outlined what we think is the best way of doing that, and if you allow me a few minutes to speak, Mr. Chairman, I wanted to elaborate for a second on that and to say to you that is why we thought we had to deal with the two of them at the same time, because we are not eliminating a limitation clause.

We made it very, very clear to this Committee and in arguments with the Minister the other day that we thought the limitation clause should not come at the beginning, that there should be a positive affirmation of our rights in the beginning of the Charter, and that at the end of the Charter, on Clause 30, we should talk about what limitations if any there are to be to the rights and freedoms contained in the Charter.

Now, Mr. Chairman, I think that the wording as outlined by my colleague is an appropriate wording and I cannot help but think back to Mr. Robert Stanfield, the national Leader of the Conservative Party, talking about one of the regrets he had about a decision made in politics was the way he voted during the war measures crisis and I say that as one of the people that was in the House back in 1970 when we had a vote on the War Measures Act in Parliament, as one of the 16 members that voted against the invocation of the War Measures Act, that we need some restraints, that we need some definition of emergency as more precise in the laws of this land and I am sure that Mr. Stanfield would support me.

I remember the speeches being made at the time by Mr. David MacDonald and that is why, Mr. Chairman, it is important that we not look at the precise wording changes for Clause 1 in isolation and we why say we have to deal with Clause 1 and Clause 30 at the same time, and why Mr. Epp’s suggestion of standing the clause is I think a very, very sensible one.

In Clause 30, for example, we are saying that to proclaim an emergency you need the support of at least two thirds of the members of Parliament who are present and voting, and that, Mr. Chairman, I think is something that is very wise. It means a government party in almost every situation since Confederation will not have two thirds of the members within their own caucus if they have to count on members of opposition caucuses, perhaps of both opposition parties, and if they can convince the opposition parties, Mr. Chairman, that there is a genuine emergency, then perhaps there is. So we have that type of limitation.

We are talking about a limitation clause and what Mr. Epp said is not the case, we are not deleting in its entirety the limitation clause, we are putting it in a different place, in a place that we think is better and we are substituting in Clause

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1 some of the proposed wording with a new wording that affirms the equality of males and females, and we have a member of this Committee who has spoken out very effectively and very forcefully for children’s rights in Jim McGrath and I think that following his advice we have to make sure we are not just speaking about men and women but we are talking about children as well, and that is covered by the phraseology “males and females”.

So I would like to urge on you, Mr. Chairman, that we accept the recommendation made by Mr. Epp that we stand this clause until we have a chance to deal with Clause 30 and give it some more thought.

Senator Roblin: Mr. Chairman, during the interval perhaps we could ask the mover of this amendment to rewrite it so that it accurately reflects what he is trying to get us to do, because it certainly does not reflect that at the present time, and that would help us to be sure of exactly what we are dealing with.

The Joint Chairman (Senator Hays): Senator Austin. Senator Austin: Well, Mr. Chairman, as to the point of procedure, I would suggest that if the New Democratic Party and the Conservatives wish to have the New Democratic Party amendment that is now before us stood for a short time, perhaps we could stand it until 3:30 p.m. and then come back to it, sort it out as Senator Roblin has just said.

On the question of dealing with a proposed amendment to Clause 30 at this particular time, I do agree…

January 22, 1981: Svend Robinson, Serge Joyal (Chairman), & Senator Roblin speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada on Svend Robinson’s Amendment, p. 54

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

With unanimous consent we agreed this morning to go back to Clause 1 to deal with the amendment as moved by the New Democratic Party, I just want to draw the attention of the representatives of the New Democratic Party to solve a minor issue that was raised by the honourable Senator Duff Roblin, that in order to have that amendment acceptable at this point we would have to change the period that comes after the word “freedoms” by a comma, because we have already voted on the last section of Clause 1 and if we do not do so the Chair will not be in a position to accept the amendment, so with the consent of the representatives of the New Democratic Party we would make that correction and would be ready to go on with the vote.

Do we have the consent of the representatives of the New Democratic Party on that?

Mr. Robinson: That was to make it a period and delete the lines following that?

The Joint Chairman (Mr. Joyal): Exactly.

Mr. Robinson: Yes, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable Senator Roblin.

Senator Roblin: Would you be kind enough to read the motion as amended that we will be voting on?

The Joint Chairman (Mr. Joyal): So the motion as moved by the New Democratic Party would be

That Clause 1 of the proposed constitution act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

and the equal rights of males and females to the enjoyment of those rights and freedoms,

It is moved:

[Page 55]

that Clause I of the proposed Constitution Act, as amended, be amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

and the equal right of males and females to the enjoyment of those rights and freedoms

Amendment negatived.

Svend Robinson’s amendment negatived on division, p. 6

The Committee resumed consideration of Clause 1 of the proposed Constitution Act, 1980, as amended.

The Committee resumed consideration of the motion of Mr. Robinson (Burnaby),—That Clause 1 as amended of the proposed Constitution Act, 1980 be further amended by adding immediately after the portion of line 3 on page 3 that reads “doms set out in it” the following:

“,and the equal right of males and females to the enjoyment of those rights and freedoms,”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 10; NAYS: 12.

Clause 1, Agreed to as amended, p. 55

The Joint Chairman (Mr. Joyal): So I have to come back, then, to Clause 1 as amended.

On Clause 1—Rights and Freedoms in Canada

Amendment agreed to.

Clause 1 as amended agreed to.

—–o0o—–

February 17, 1981, Jake Epp, Debate in the House of Commons, p. 7387 (click HERE)

Mr. Epp: It was for that reason that we moved the following amendment:

Affirming 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.

Affirming also that individuals and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law,

Some hon. Members: Hear, hear!

Mr. Epp: That proposal was rejected by the Liberal members, and no matter how often they say that we are delaying the entrenchment of the charter, the point is that their charter is based on a false premise. If the minister says that he wants to finish the work of the Right Hon. John Diefenbaker, let me tell him that what he has now done is to gut and destroy his work.

Some hon. Members: Hear, hear!

Mr. Epp: The charter which the right hon. gentleman recognized was based on the very principle which we have just stated. Governments cannot be supreme; it is the people in a democracy who must be supreme.

Some hon. Members: Hear, hear!

Mr. Epp: What about our other roots? Can a nation grow and develop if it forgets about its roots? For example, if we want to forget about this amendment, why was this country the Dominion of Canada? Why did the Fathers of Confederation go back to Psalm 72, verse 8, “He shall have dominion also from sea to sea, and from the river unto the ends of the earth?” Why was the dominion and the country to be vested in the supreme God and not in government? What the charter does is to remove these roots.

—–o0o—–

February 18, 1981, Dennis Dawson, Debate in the House of Commons, p. 7443 (click HERE)

Mr. Dennis Dawson (Parliamentary Secretary to Minister of Employment and Immigration): […] As was so aptly pointed out by the Minister of Justice and Minister of State for Social Development (Mr. Chrétien), nobody has to be perfect. In the speech I made in December, I drew to the attention of the House some weaknesses of the Canadian Charter of Rights and Freedoms. Today, in light of the report of the special joint committee, I note that several of those weakness have been corrected. For example, in Section 1 of the first resolution, the individual rights were restricted as follows: “It is subject only to such reasonable limits as are generally accepted in a free and democratic society within a parliamentary system of government.” As a result of some amendments, the section now reads as follows:

I suggest that this change is consistent with the many requests made by human rights groups and will. prevent any discriminatory action not only on the part of provincial governments—for the restraining effect of the charter does not apply exclusively to provincial governments—but also to the federal government.

—–o0o—–

March 13, 1981, Claude-André Lachance, Debate in the House of Commons, p. 8243 (click HERE)

Mr. Lachance: […] This conservatism of our courts, particularly the Supreme Court of Canada, brings two things to my mind. On one hand, those who claim that Canadian courts will become overly active should rest easy, that is not in the traditions of our courts. On the other hand, those who claim that the courts should not be involved in politics can be reassured by the tradition of legal interpretation of those same courts. In this respect, the Pratte report in Quebec highlighted the difficulties in interpreting Clause 1 of the resolution, particularly its allegedly very vague terminology, more especially Clause 1 of the charter which reads as follows, and I quote:

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

Well, Mr. Speaker, this supposedly vague language can be found in a number of Canadian statutes, for instance in the Criminal Code as it relates to search and seizure. So our Canadian courts will not be breaking new grounds when they interpret such a provision. That same provision will undoubtedly enable the courts to carry out the full intent of the legislative will of Canadian legislators within provincial legislatures or within the federal legislature of the Canadian Parliament.

—–o0o—–

March 18, 1981, Coline Campbell, Debate in the House of Commons, p. 8386 (click HERE)

Miss Coline Campbell (South West Nova): […] What we have accomplished is a charter made in Canada incorporating the basic rights that belong to the people in every part of Canada. They are not to be denied by any legislature unless a court deems that such legislature has shown a justified reason promoting the greater good. In fact, one of the greatest accomplishments of the committee was the changing of clause 1, which gave power to the courts—and not to Parliament or the legislatures—to define or make rulings with respect to the rights of Canadians.

—–o0o—–

March 25, 1982, John Gamble & Pierre Trudeau, Debate in the House of Commons, p. 15807 (click HERE)

EMERGENCY MEASURES

PROTECTION AFFORDED BY CHARTER OF RIGHTS

Mr. John Gamble (York North): Madam Speaker, in answer to a question asked by the hon. member for Saskatoon West with respect to the effect of the emergency planning order of May, 1981, the Prime Minister stated yesterday that the Charter of Rights affords protection to anyone whose rights are abused under the War Measures Act, the emergency planning order or anything else. The Prime Minister will be aware that the first paragraph of the constitutional resolution provides that the rights and freedoms are subject to such reasonable limits prescribed by law which can be demonstrably justified in a free and democratic society.

I ask the Prime Minister whether the War Measures Act is within the prescribed limits of Section 1 of the new Constitution, and can it in fact still operate so as to deprive Canadians of their rights under the Charter? If not, will the Prime Minister be introducing a bill in this House to repeal the provisions of the War Measures Act on the grounds that they will become unconstitutional under the new Constitution?

Right Hon. P. E. Trudeau (Prime Minister): Madam speaker, I honestly do not know if that is a rhetorical question. The hon. member should reflect on the fact that this kind of question will ultimately be decided by the courts. The preamble to the Charter was introduced, I seem to recall, with the support of all sides of this House precisely in order to assure that the War Measures Act or any other emergency order would not be used in a way contrary to democratic procedures in this country. Therefore I have no hesitation—well, now we have the hon. member for Durham-Northumberland wanting to get into the act.

Madam Speaker, the law speaks for itself. If the hon. member is suggesting we should delete the preamble to the Charter then I suggest he would have—his seatmate is shaking his head; he does not want that to happen. Therefore, the hon. member should realize that there is this protection in the Charter; it was put in there precisely to answer the kind of doubts the hon. member is entertaining.

DEFINITION OF WAR

Mr. John Gamble (York North): Madam Speaker, it is that type of response which creates the confusion. Yesterday the Prime Minister led the Canadian people to believe very specifically that this Charter, and paragraph 1 thereof, would override the provisions of the emergency planning order. He now says it should be left up to the courts, which of course is the case. My submission, Madam Speaker, is that he should not delude the Canadian people. One of the other great problems with the emergency planning order is the references to “in case of war”, including the incarceration of Canadians in civilian concentration camps. While “emergency” is defined under the provisions of the planning order, “war” is not. Will the Prime Minister agree to amend that order, offensive as it is, to provide that when “war” is referred to under this order it is real war between Canada and some foreign nation, and not apprehended war?

Right Hon. P. E. Trudeau (Prime Minister): Does the hon. member want me to say something about the cold war, too? I await his suggestions.

—–o0o—–

February 23, 1982, George Cunningham& Enoch Powell, Debate in the UK House of Commons, columns 770-831 (click HERE)

Mr. Powell: […] That brings me, I hope not after too long a journey, to the wording of paragraph 1 of schedule B, to which I seek to introduce a preliminary amendment. The schedule reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it”, but it does not stop there. It continues: “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” I wonder—and this is germane to my amendment—just what kind of guarantee is conveyed by such a provision. If the rights and freedoms are guaranteed, we should understand what is meant by their being guaranteed subject…to such…limits…as can be demonstrably justified in a free and democratic society. Is this a justiciable wording? That is to say, is it the meaning and intention of those who have asked us to make that wording law that it shall be the courts in Canada that will decide whether the justification is demonstrable?

Mr. George Cunningham: The right hon. Gentleman will know that those words have been much argued about in Canada, on the grounds that he mentions. He will also recollect, however, that those words or words virtually identical with them are part of the European Convention on Human Rights which, to the limit to which it. is justiciable in this country–-that is, to some extent—is subject to court interpretation. Therefore, although it may seem odd in Canada, it should not seem odd that those words should be justiciable in this country.

Mr. Powell: I realised, although I am obliged to the hon. Member for Islington, South and Finsbury for reminding me of it, that these words had occurred elsewhere and in a context that has my unreserved detestation and rejection—the subordination of this country to the decisions of a foreign court and the habit of the subjects of the Crown to appeal against the court; of the Crown to an external court. The reminder that I have received from the hon. Member does not in any way reconcile me to these words or make them more palatable.

Nor does the reminder help to answer the specific question which I am, in a sense, putting to the people of Canada at the moment when they have removed their constitutional law, or are removing it, from the statute book of another country and taking it home, as they say. The question is: in their country are the sovereign political decisions in the future intended to be taken by judges or by their representatives in Parliament assembled? Surely I do not need to say that this is not a quibble. In this place of all places one does not need to say that.

The natural meaning of what we might be thought to be doing by enacting part I of schedule B is giving to the judges of a court the ultimate political decisions as to what is “a free society”, what is “a democratic society”, what is “justifiable” in such a society and what is “demonstrable”.

I hope that I do not discern any movements or indications of impatience in you, Mr. Weatherill. I trust at least that it is not tedium on your part.

The Chairman: I hasten to assure the right hon. Member that it is not impatience. Rather, I am waiting for him to talk to his amendment. I guess that he is paving the way towards his amendment, which brings parts I and II into clause 1.

Mr. Powell: I had wondered whether such thoughts were passing through your mind, Mr. Weatherill. But the meaning of the term “guarantees” in paragraph 1 of part I is germane to the validity or desirability of the amendment that I have introduced, because I seek to widen the scope of the term Canadian Charter of Rights and Freedoms and to widen it in a particular way. To justify that, and in doing so, not to mislead any of those who might otherwise be misled by such a proposition, it is necessary to understand what is and what is not guaranteed, and what is the meaning of guarantee in the context of part I. Otherwise, I do not see how the Committee could form a judgment on the question of whether that terminology should extend to part II as well as to part I of the schedule.

I sum up my conclusion on the nature of the guarantee, the extension of which is the purpose of the amendment. My object is to elicit correction or confirmation from a source of some authority. My conclusion is that Canada has no intention, and no notion that intends, to be a country where the political decisions are taken on the judicial bench.

I know that there are contexts in which it might be argued that they have that situation already and perhaps are vainly attempting to continue it by the Bill. But that it is the intention of the Canadians that what is a “free and democratic society”, what can be “justified” in it, what can “demonstrably” be justified in it and what limits can therefore be “prescribed by law” in that country ought to be taken, not by their elected representatives but by a court, is something which hitherto had not occurred to me. If that is so, then we ought, on behalf of those who have asked us so to legislate, to face the fact that there is, and there will be, little real or natural meaning in the term “guarantees” in paragraph 1 of part I.

I know that the schedule contains provisions which specifically say that the legislative authorities can neglect, and can legislate notwithstanding, portions of the Charter of Rights and Freedoms, notably the portions contained in paragraph 2 to 7. Perhaps the deliberate omission of paragraph 1 of part I from that exclusion could have conveyed the notion to some—and we are talking about real people, many of whom are anxious, and many of whom may be confused as to what is going on—that there is some unique effective guarantee contained in part 1 of the schedule.

[…]

Mr. George Cunningham: Will the right hon. Gentleman answer this question? What difference does it make whether part II is part of the description of the Canadian Charter of Rights and Freedoms? Does it not mean only that part II is not subject to the words in section 1 which say that they are to be interpreted subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society? Does this not mean that part II, dealing specifically with aboriginal rights, is free from that limitation while part I is subject to the limitation? Is part II not therefore in a privileged position compared to part I? Is there any other difference?

Mr. Powell: The hon. Member for Islington, South and Finsbury has entered upon a most ingenious train of thought. This will become news, perhaps headline news today or tomorrow—I forget which day it is now in Canada—when the newspapers learn that the effect of their charter of rights and liberties is actually restrictive and that the other parts of the constitution are guaranteed more effectively and subject to less limitation and dubiety than the parts described as the charter of liberties. This is a most alarming point, to which I hope an answer will be given.

The hon. Member for Islington, South and Finsbury underlines the labile nature of this concept “guarantee” in section 1 of the schedule. It becomes all the more incumbent upon hon. Members to draw to the attention of those for whom we are legislating the extraordinarily inefficacious character fo the wording that an attempt has been made to devise with whatever objectives—whether those that I apprehend or those suggested by the hon. Member for Islington, South and Finsbury.

—–o0o—–

March 3, 1982, Enoch Powell, Debate in the UK House of Commons, columns 359-374 (click HERE)

Mr. J. Enoch Powell: Despite the breadth and latitude of the ruling of the Chairmen of Ways and Means that you, Mr. Godman Irvine, have just repeated, it would be tedious if those of us who have taken a detailed interest in the Bill were to use this opportunity to deal with the individual matters in schedule B which were the subject of amendments which have not been selected. Therefore, I wish to address myself to the general question of what sort of document it is that we are enacting by enacting schedule B through adding clause 1 to the Bill.

Part of the schedule is loosely described as a bill of rights and defines itself and entitles itself as a charter of rights. But is this a charter or a bill of rights in the sense that it constitutes a basic constitution that can be interpreted by the courts, and, as a result, the rulings of the courts become law, binding upon citizens of the country concerned and incapable of being amended by its legislature? In other words, is it a document analogous to the constitution of the United States or, to take a different analogy, is it analogous to the European Convention on Human Rights, to which this country has undertaken compliance, compliance with that convention as adjudged, defined and applied by the European Court of Human Rights.

I wish to put three tests in the light of the context of the schedule, in accordance with which I believe that that question can be answered. The first is the generality of a great many of the provisions of the schedule. I shall take only two instances. The first, section 1 of the schedule, where the charter of rights and freedoms guarantees the rights and freedoms set out in it and then follow the words: subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. I take as my second example one that I think may be of particular concern to the hon. Member for Workington (Mr. Campbell-Savours), who, I think, will have section 7 in mind, which says: Everyone has the right to life. If these are prescriptions interpretable by courts and capable, through interpretation by courts, of being made the specific law of the land, then the courts, in effect, become the supreme legislature of the country concerned. The largest of public questions, the most specific matters touching criminality and personal relations and behaviour, cease to be within the competence of the elected representatives of the people and are laid down in accordance not necessarily even with precedent, for there can be no precedent in interpretating such wide and cloudy generalisations. These are interpreted perhaps in accordance with some principles of law derived, I know not whence. Perhaps in the case of the European Court of Human Rights they are derived from Roman law, but they are not derived from the common law of Britain.

So, we ask when we look at a great many of the provisions in this charter” does this mean—for if it is a charter it would mean—that the Canadians are constituting 364 their supreme court as, in effect, their legislature on all these matters which in this country are settled finally—subject to external obligations, which we are now starting to explore and which are undertaken by the Government—by Parliament and, specifically, by this House? It should be understood that, in the sense of being an entrenched and justiciable document, a charter of liberties or a bill of rights is incompatible with parliamentary sovereignty.

It is also incompatible with the rule of law as we understand it, which requires that the law shall be so defined and of such a character that the citizen may reasonably inform himself in advance of what will or will not be adjudged to be lawful. Certainly, no one reading the generalities of the early part of the schedule could possibly decide how a court would rule upon so many measures which in legislation we are careful by procedure to define as accurately and precisely, and often intelligibly, as we [text cuts off here]

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Previous Versions of this Report: [Version 1]

Archival Materials, Reports, Secondary Sources and Other Materials, Section 1 [Constitution Act, 1982] Report, Section 1 (Charter of Rights and Freedoms)

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REPORT: “Reasonable Limits,” Section 1 of the Constitution Act, 1982

SECTION 1

Reasonable Limits

Short Table of Contents

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 1’s Public Meaning

Drafts of the Charter of Rights and Freedoms

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 1’s Public Meaning

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REPORT: “Reasonable Limits,” Section 1 of the Constitution Act, 1982

SECTION 1

Reasonable Limits

Short Table of Contents

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 1’s Public Meaning

Drafts of the Charter of Rights and Freedoms

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 1’s Public Meaning

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