REPORT: Affirmative Action, Section 15(2) of the Constitution Act, 1982

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Date: 2023-07-12 [Updated: 2023-08-04)
By: PrimaryDocuments.ca
Citation: PrimaryDocuments.ca, Section 15(2), Affirmative Action: Compilation of primary documents to assist in interpreting the original public meaning of Section 15(2) of the Constitution Act, 1982, Second Ed. (August 2023).
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SECTION 15(2)

Affirmative Action

Compilation of primary documents to assist in interpreting the public meaning of Section 15(2) of the Constitution Act, 1982

Second Edition

August, 2023

Short Table of Contents

Part 1: The Drafting History of the Charter of Rights and Freedoms Pertaining to Section 15(2)’s Public Meaning
Part 2: The Primary Record (Debates, Papers, Committees…) Pertaining to Section 15(2)’s Public Meaning
Endnotes

The Constitution Act, 1982

Part I. Canadian Charter of Rights and Freedoms

Equality Rights

Affirmative action programs

Section 15(2) Subsection (1)[1] does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

PART 1:

Drafting History of the Charter of Rights and Freedoms Pertaining to Section 15(2)’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)
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)
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

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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)

(2) Nothing in this section shall be interpreted as precluding the enactment of or rendering invalid any affirmative action program on behalf of disadvantaged persons or groups.

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

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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)

(2) Nothing in this section precludes any programme or activity authorized by or pursuant to law that has as its object the amelioration of conditions of disadvantaged persons or groups.

(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)

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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)

(2) This section does not preclude any programme or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.

(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)

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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)

(2) This section does not preclude any programme or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.

(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)

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

(2) This section does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.

(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)

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

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.

(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)

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

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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)

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November 18, 1981: House of Commons Draft

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

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November 24, 1981: House of Commons Draft

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

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November 26, 1981: House of Commons Draft

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

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December 2, 1981: House of Commons Draft & Vote

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

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PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 15(2)’s Public Meaning

October 10, 1978, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 20, Report to Parliament (click HERE), p. 15
January, 1979, The Task Force on Canadian Unity, 1979: A Future Together: Observations and Recommendations, (click HERE), p. 125
February 5-6, 1979, Federal Draft Proposals, Federal-Provincial Conference of First Ministers on the Constitution (click HERE)
July 5, 1980, Charter of Rights, Background Notes, Tabled by the Delegation of the Government of Canada at the Continuing Committee of Ministers on the Constitution (July 8-11, 1980), (click HERE), p. 2
July 22-25, 1980, Continuing Committee of Ministers of the Constitution, Powers over the Economy: Securing the Canadian Economic Union in the Constitution, Discussion Paper Submitted by the Government of Saskatchewan (click HERE), p. 4
July 22-25, 1980, Continuing Committee of Ministers of the Constitution, Powers over the Economy: Options Submitted for Consideration by the Government of Canada (click HERE), p. 1
August 26, 1980, Sub-Committee of the Continuing Committee of Ministers, Presentation by the Native Council of Canada (click HERE), p. 9
September 8-13, 1980, Federal-Provincial Conference of First Ministers on the Constitution, Summary Record of Proceedings (click HERE), pp. 29, 37, 38, 39, 40
October 7, 1980, Debate in the House of Commons (click HERE), p. 3359
October 16, 1980, Debate in the House of Commons (click HERE), pp. 3717, 3755
October 22, 1980, Debate in the House of Commons (click HERE), pp. 3943, 3947, 3954
November 12, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 3 (click HERE), pp. 32, 85
November 14, 1980, Appendix CCC-1, Submission of Canadian Human Rights Commission, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 5 (click HERE), p. A:2
November 18, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 7 (click HERE), pp. 17, 22, 94
November 19, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 8 (click HERE), pp. 13, 19
November 20, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 9 (click HERE), pp. 59, 65, 73, 78, 127, 138, 142
November 21, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 10 (click HERE), p. 10
November 24, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 11 (click HERE), pp. 32, 42
November 25, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 12 (click HERE), p. 78
November 28, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 15 (click HERE), p. 12
December 1, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 16 (click HERE), p. 12
December 2, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 17 (click HERE), pp. 90, 99
December 3, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 18 (click HERE), p. 34
December 4, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 19 (click HERE), p. 31
December 5, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 20 (click HERE), p. 12
December 8, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 21 (click HERE), p. 31
December 9, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 22 (click HERE), pp. 31, 60, 70, 110, 124, 139, 148
December 11, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 24 (click HERE), pp. 57, 74, 79, 80
December 15, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 26 (click HERE), Appendix, p. 8
December 16, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 27 (click HERE), p. 85
December 18, 1980, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 29 (click HERE), pp. 66, 126, 145, 148
January 6, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 32 (click HERE), p. 36
January 12, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 36 (click HERE), p. 15
January 14, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 37 (click HERE), p. 12
January 20, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 41 (click HERE), pp. 18, 22, 99, A:2
January 21, 1981, Svend Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 42 (click HERE), p. 8
January 27, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 46 (click HERE), pp. 93, 96, 98, 100
January 29, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 48 (click HERE), pp. 7, 40, 42, 43
February 9, 1981, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 56 (click HERE), p. 3
March 4, 1981, Debate in the House of Commons (click HERE), p. 7898
March 5, 1981, Debate in the House of Commons (click HERE), p. 7953
November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, Verbatim Transcript [Including Agreement on Constitution] (click HERE)
November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, New Brunswick Proposals concerning The Charter of Rights (click HERE)
November 23, 1981, Debate in the House of Commons (click HERE), pp. 13123, 13129, 13130
November 24, 1981, Debate in the House of Commons (click HERE), p. 13197
March 25, 1982, Debate in the House of Commons (click HERE), p. 15803

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Note: The following is a selection of excerpts, not intended to be an exhaustive summary. The reader is encouraged to view the document as a whole.

October 10, 1978, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 20, Report to Parliament (click HERE), p. 15

Recommendation 10:

[…] We would also add two additional clauses to the Charter. First, we believe that special programs on behalf of disadvantaged groups or persons should be protected. Such programs are intended to prevent or reduce disadvantages suffered on the basis of such factors as are specifically authorized by the Canadian Human Rights Act. This protection should perhaps be added to clause 9.

Recommendation 11:

The proposed Charter should not prevent special programs on behalf of disadvantaged groups.

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January, 1979: The Task Force on Canadian Unity, 1979: A Future Together: Observations and Recommendations, (click HERE), p. 125

28. The preamble to the constitution should include a declaration that the people of Canada

i—maintain and reinforce their attachment to democratic institutions, federalism, human rights and the principle of supremacy of the law;

ii—recognize the historic partnership between English and French-speaking Canadians, and the distinctiveness of Quebec;

iii—affirm the special place of the native peoples of Canada;

iv—recognize the richness of the contribution of Canada’s other cultural groups;

v—recognize the diversity among Canada’s regions and the need to permit all regional communities to flourish;

vi—seek the promotion of the social, economic and cultural development and the equality of opportunity for all Canadians in all regions of Canada.

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February 5-6, 1979, Federal Draft Proposals[2], Federal-Provincial Conference of First Ministers on the Constitution (click HERE)

D. Non-Discrimination Rights

1. Right to equality before the law and to equal protection of the law without distinction or limitations other than one which is provided by law and fair and reasonable having regard to object of law.

2. Exemption of laws which are in furtherance of affirmative action programs even though they may discriminate, as long as discrimination is justifiable.

Limitation Clause

None, except as built in to section.

Override Clause

Provinces could opt in with general override power.

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July 5, 1980: Charter of Rights, Background Notes[3], Tabled by the Delegation of the Government of Canada at the Continuing Committee of Ministers on the Constitution (July 8-11, 1980), (click HERE), p. 2

The federal government is proposing that under the Constitution all Canadians, regardless of race, national or ethnic origin, language, color, age, sex, or any other similar grounds, will have the same rights before the law and enjoy the same protection of the law.

Because it has been very difficult to reach an agreement on a complete enumeration of the grounds, the federal “discussion draft” includes a general clause rather than a list.

Non-discrimination rights need to be assured by a clear declaration in the Constitution. Discrimination of any of these grounds can easily occur. The Government of Canada considers the Charter would be seriously deficient if these rights were not covered.

This section contains a provision permitting the use of “affirmative action” programs that are authorized by law to improve the conditions of disadvantaged people or groups of people.

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July 22-25, 1980, Continuing Committee of Ministers of the Constitution, Powers over the Economy: Securing the Canadian Economic Union in the Constitution, Discussion Paper Submitted by the Government of Saskatchewan (click HERE), p. 4

We have not been able to establish the extent to which section 121 in particular would invalidate provincial laws and regulations.

On the one hand, we are assured that “the new provisions would not prevent affirmative action programs, regional development policies, industrial incentives, income redistribution, etc.”.

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July 22-25, 1980, Continuing Committee of Ministers of the Constitution, Powers over the Economy: Options Submitted for Consideration by the Government of Canada (click HERE), p. 1

The new Section 121 would not seek to prohibit all possible impediments to economic mobility, since the federal government recognizes that the Canadian Federation has other goals—political, social, cultural, as well as economic — the pursuit of which must not be restricted by too sweeping provisions regarding economic mobility. Accordingly, the suggested legislative text would provide for exceptions, so that the principle of non-discrimination would be applied in a flexible manner.

[Page 2]

Thus, the new provisions would not prevent affirmative action programs, regional development policies, industrial incentives, income redistribution, etc. For example, it would be absurd that the Constitution should prevent the federal government from introducing measures such as the National Oil Policy put in place in the early 1960’s, to facilitate the development of Western Canada’s oil resources while allowing Quebec and the Atlantic provinces to obtain lower priced oil from foreign sources. Similarly, provincial governments should not be prevented from implementing differentiated policies and programs to meet the special needs of various areas and communities within a province.

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August 26, 1980, Sub-Committee of the Continuing Committee of Ministers, Presentation by the Native Council of Canada (click HERE), p. 9

The federal government wishes to guarantee the free flow of goods, services, labour and capital across provincial boundaries. While native peoples can support the safeguarding of the Canadian economic union, serious

[Page 10]

consideration should be given to exempt native economic development from the principle of non-discrimination, especially in remote areas where they have so often in the past been displaced by southern business and labour interests. With regards to this matter we wish to know whether or not we are included in the affirmative action and regional development programs for which the government is planning exceptions.

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September 8-13, 1980, Federal-Provincial Conference of First Ministers on the Constitution, Summary Record of Proceedings (click HERE), p. 29

130.

3. Newfoundland reiterated that it was not prepared at that time to support the entrenchment of anything other than Fundamental Freedoms and Democratic Rights. It suggested that discussion of sections 6 onward be set aside and continued among governments over the next several weeks or months until such time as some sort of consensus could be reached. Newfoundland stressed that certain affirmative action programs were essential for a province’s development and that national goals could not be allowed to extinguish equally laudable regional goals.

p. 37

152. The Chairman introduced this item by outlining his government’s position that the free movement of people, goods, services and capital across Canada was not adequately guaranteed in the present constitution. He noted that Section 121 of the B.N.A. Act prohibited customs duties and border taxes between provinces but did not prohibit non-tariff barriers~ He reminded First Ministers that federal representatives to the CCMC meetings held this summer had maintained that Canada did not possess the kind of guarantees of a common market found in other federations, as well as in the European Economic Community and GATT. Accordingly, the federal government wanted an affirmation of those guarantees within a new constitution. Such guarantees would not, in Mr. Trudeau’s opinion , serve to strengthen federal powers; if provinces were deprived of the use of certain non-tariff barriers between one another , certain federal measures other than affirmative action program5 that discriminated between regions would be affected as well.

153. Mr. Davis expressed support in principle for the strengthening through the constitution of economic ties within Confederation. It had been his understanding from the CCMC sub-committee report that there had been general acceptance in principle for the strengthening of the economic union. He observed that over past years, the incidence of various restrictive practices by provincial governments had increased, threatening to balkanize the Canadian economy. Mr. Davis agreed with the federal position that the principle of an economic union ought to be enforceable. He suggested that some sort of intergovernmental forum, perhaps related to a revised Upper House, could establish guidelines or in some other way supplement court action. He emphasized that any such entrenchment should not prevent the enactment of affirmative action programs.

p. 38

156. The federal Minister of Justice, Mr. Chretien, argued that all levels of government must take into account changing international realities, most notably Canada’s commitment to abide by the results of GATT negotiations. With respect to Section 121, the Minister explained that the federally proposed amendments would not preclude affirmative action: the federal government simply wanted to prevent the growing acceptance of a concept of provincial citizenship. In reply to the Quebec position, Mr. Chretien informed the Quebec Minister that the term “unduly” had been used in the first federal draft but had been removed from the subsequent ones. Additionally, he questioned why the Quebec government seemed unwilling to at least agree to the adoption of those measures related to the preservation of an economic union as outlined in its white paper on Sovereignty-association. The Minister went on to point out that discrimination by one province would invite retaliation by another; in the long run, the more powerful provinces would win any such economic war. He concluded by arguing that any sense of short-run urgency triggering provincial protectionism must be balanced against the longer-run requirement of achieving greater productivity in Canadian industry.

p. 39

158. The Minister of Education for Prince Edward Island expressed his government’s general support for the views expressed by British Columbia, New Brunswick and Quebec. He reminded First Ministers that principles must be applied to the exigencies of the real world. Additionally, his government had difficulty in accepting the principle that only the federal government would have the right to intervene in certain areas of economic life in Prince Edward Island. The Minister made two additional points. Firstly, he did not believe that the various social and economic communities comprising Canada would be willing to relinquish entirely to the courts the right to make certain social and economic decisions. He felt that an economic balkanization of Canada would not occur if a spirit of mutual respect, goodwill and fairmindedness prevailed. In this regard, he alluded to the importance of Canada’s central institutions. Secondly, it was the Minister’s belief that the concept of an economic union was in itself discriminatory: it discriminated in favour of the economically powerful due to its adherence to the “dogma” of the economy of scale. He believed that many provinces would suffer in the event of a rigorous pursuit of an economic union. Despite the federal Minister’s remarks concerning the legitimacy of affirmative action programs, his government was reluctant to allow the courts to decide what was permissible. Finally, on the question of equalization, the Minister echoed his government’s view that, in some ways, equalization constituted a repayment for the adverse effects of certain national policies. He concluded by stating that although his government could support the federal proposal to some extent, it still had serious reservations.

p. 40

160. Mr. Buchanan agreed with the “motherhood” principle of an economic union. However, he underlined the importance of taking regional differences into consideration, particularly with regard to the situation in the Maritime provinces. He maintained that the economic gap between the Maritimes and Central Canada would continue to widen until the federal government recognized regional differences and the resources of the Maritime provinces were expanded and developed with control and revenues accruing to the provinces. Mr. Buchanan criticized the influence of the Foreign Investment Review Agency in Nova Scotian economic affairs, stating that it blocked badly needed investment. He mentioned his government’s 10% preference policy for Nova Scotian goods and services and argued that freight rate policies served to undermine Nova Scotia’s potential competitive edge in Central Canadian markets. He reaffirmed his province’s support for affirmative action policies. Mr. Buchanan concluded by stating that, subject to the above comments, he agreed with the federal proposal.

161. Mr. Peckford stated that his government was of the opinion that the federal government already had sufficient powers to protect the economic union under Sections 91(2), 92(10) (c) and 121 of the BNA Act; the federal government had simply not adequately discharged the duties stemming from those powers, notably with regard to the transmission of Newfoundland’s hydro-electric power through Quebec. Mr. Peckford was of the view that the problems encountered with existing federal powers caused skepticism as to the desirability of granting additional powers. He went on to argue that in the light of the prevailing international prices for oil and gas, the federal government’s domestic pricing policies were inconsistent with its position concerning the recognition of changing international realities as they affected the Canadian economic union. Referring to affirmative action programs, Mr. Peckford cited some examples of federal-provincial co-operation in this area and asserted that there were certain “catch-up”

[Page 41]

programs which did not detract from the concept of an economic union. He underlined his government’s commitment to the concept of true value for resources. Summing up, Mr. Peckford endorsed the Saskatchewan proposal for enshrining the maintenance and promotion of an economic union within the constitution. With respect to enforcement, he indicated his government’s willingness to discuss some possible combination of a political body and courts, in addition to continuing discussions on the subject in forums such as the First Ministers’ Conference.

162. Mr. Blakeney outlined a number of legal points concerning proposed amendments to Section 91 that required clarification. Aside from some difficulties with legal wording, he expressed general support for the federal proposals in the areas of competition and product standards. With respect to the regulation of trade and commerce, his government had reservations concerning the inclusion of the ambiguous term “capital” in the proposed new subsection intended to clarify the phrase “regulation of trade and commerce”. The use of the word “capital” could similarly create difficulties with respect to existing provincial control of Caisse populaires and Credit Unions. Accordingly, until these concerns had been resolved, the Saskatchewan government was not prepared to agree to the federal proposals with respect to trade and commerce. Concerning mobility rights, Mr. Blakeney thought it inappropriate to incorporate in a charter rights for corporations to buy and sell assets. With respect to the broader issues raised by Section 121, he underlined his province’s wish to secure and improve the economic union, but not to the exclusion of all other economic and social goals. He noted that not all measures that would restrict the mobility of labour were bad, notable examples being affirmative action programs and unemployment insurance. He noted that the only factors impeding the mobility of people, goods, services and capital touched upon by the federal proposal concerning Section 121 were those defined in terms of provincial boundaries, whereas in reality there existed an extensive list of items which impeded the economic union. He asserted that the concept of an economic union was, in a sense, a mythical one, because perfect competition did not exist. He argued that a code of permissible practices was required. Therefore, First Ministers should not agree to insert in the constitution the federal proposal concerning Section 121 but should instead simply agree to inserting a provision indicating their pursuit of an economic union, and possibly include in their agreement any further steps to be taken in this regard. Mr. Blakeney made a final point concerning the courts. He maintained that federal attempts to allay fears concerning the possible vulnerability of certain laws passed in his province were pointless, because under the federal proposals, judges would be making those decisions. He expressed his misgivings about the fact that judges would be called upon increasingly to make decisions in new and controversial social areas.

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October 7, 1980, Debate in the House of Commons (click HERE), p. 3359

Mr. Axworthy: […] Let us look at one dimension that concerns my ministerial responsibilities, namely, the enormous movement of people, both within and outside the region in western Canada. We are talking about the need to develop 30,000 or 40,000 skilled jobs per year for western Canada. We are talking about training hundreds of thousands of people over the next decade to do the work that is necessary to ensure the growth of the west. We are talking about trying to make sure that this enormous employment opportunity is available to the native people of western Canada and to women in this country. We are talking about using the enormous growth potential that exists.

[Page 3360]

When I start negotiating how to provide these skills and this training I find, increasingly, provincial barriers to the movement of labour or certification laws which provide that people cannot work in a certain place because they do not have a white piece of paper-their paper is not the right colour. When we try to sign training agreements with industries in western Canada, right away the provincial governments say we cannot have training agreements with their industries. When we talk about introducing affirmative action programs to make sure there is equal opportunity for native people, the provincial governments tell us they do not believe in affirmative action. They claim there is no inequality in their provinces and they do not have affirmative actions, and therefore the agreement cannot be signed.

Our capacity and ability to provide some degree of management of the human resources which are absolutely essential for the development of the west, are being hindered and handicapped by the increasing growth of provincial barriers to the mobility and movement of people. They are being hindered and handicapped by the increasing number of labour laws and provincial human rights codes which prevent federal activity providing those skills and opportunities. We cannot build the west with those kinds of barriers, Mr. Speaker. We cannot fulfil our destiny unless there is some jurisdiction that provides comprehensive management. The people must come from somewhere. They cannot come from under the ground like the oil and gas. They must come from other parts of Canada or from offshore and someone has to manage that movement. That is one of the great tasks of our time.

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October 16, 1980, Debate in the House of Commons (click HERE), p. 3717

Hon. David Crombie (Rosedale): Madam Speaker, my question is for the Minister of Justice, who in this case in particular fortunately is also the minister responsible for social programs. The minister may recall that in June of 1978 there was a very famous case in the United States, the Bakke case, which dealt with affirmative action programs in relation to the bill of rights in the United States. In that particular case, which the minister will recall, the Supreme Court of the United States threw out the affirmative action program at the University of California on the basis that it was discriminatory according to the bill of rights. I would like to ask the minister whether he has yet sought a legal opinion as to whether social programs in this country— and more particularly, affirmative action programs—are in jeopardy as a consequence of the bill of rights proposed in his resolution.

Hon. Jean Chrétien (Minister of Justice and Minister of State for Social Development): Madam Speaker, I am not aware of the particular case to which the hon. member refers. I will look into that, but I think that we have made provisions in the bill of rights which will be enshrined in the constitution to make sure there is no such problem. In fact, if this House would make up its mind and send the whole resolution to the committee, I would be able to deal on a one-to-one basis with these questions. The matter is before the House, but it is in the committee where we can reply to these questions.

Mr. Crombie: Madam Speaker, like all members of this House, I am aware that section 15(2) of the proposed resolution deals with the question of affirmative action programs as related to the disadvantaged. If the minister will check, he will find that one of the difficulties in the Bakke case and two subsequent cases was that the definition of the word “disadvantaged” caused great difficulty. Right now in Washington— I checked this morning—their own affirmative action programs and many of their social programs are in jeopardy as a consequence of that decision. Would he please undertake to advise the House of the legal opinion which he would seek, and make sure that the House, and indeed all people in this country who are concerned with the matter, are informed?

Mr. Chrétien: Madam Speaker, we did answer this question a few seconds ago. I said that it is before the committee that we will discuss these issues—

Mr. Clark: You prefer Westminster.

[Page 3718]

Mr. Chrétien: —and ensure that the proposed charter of rights be debated in a rational fashion. I think that during the exchanges we might have in committee between members, myself and the officials of my department we could find the best solution. I do not think that it will be in the best interest of the House to try to score political points at this stage—

Mr. Clark: Yes, go to London, avoid Canadians

Mr. Chrétien: Madam Speaker, the hon. member seems to believe there is a serious problem, a problem I would like to solve in a judicial manner as quickly as possible. The best way of doing so is to discuss the proposals of the hon. member in committee, to look at the legislation as it is drafted and amend it if necessary.

Mr. Crombie: Madam Speaker, the minister well knows, and so do his colleagues, that we will be asked to vote on this matter before it is sent to the committee. The people 1 represent would like to know the answer to the question. It is a very straightforward question. The basis of my question is this: the Minister of Employment and Immigration brought forward a few weeks ago three affirmative action programs dealing with young people, dealing with women, and dealing with Indians. If the Bakke case were applied here, those three programs would not be declared legal.

Some hon. Members: Oh, oh!

Madam Speaker: Order, please.

Mr. Crombie: I ask the minister only one question—

Madam Speaker: Order, please. I know the hon. member was about to ask a question, but I must remind him that when I call him to order, he must resume his seat. Will he now put his question immediately.

Mr. Crombie: Madam Speaker, I appreciate your advice to me. I should like to ask the minister whether he would undertake to provide the House with a legal opinion that those three programs are not in jeopardy.

Mr. Chrétien: Madam Speaker, it is my intention to deal with all these problems in the committee—

Some hon. Members: Oh, oh!

Mr. Chrétien: —and I am profoundly convinced that the best way we can protect the rights of Canadians is to have a good charter of rights—

Some hon. Members: Oh, oh!

Mr. Chrétien:—and to make sure that this charter of rights is enshrined in the constitution and drafted in such a way that no affirmative action programs which have been decided on for the good of Canadians will be thrown out because of the charter of rights. Basically, a charter of rights is to protect rights. I am glad that the hon. member wants those rights to be protected and I hope he will vote for a charter of rights.

Some hon. Members: Hear, hear!

An hon. Member: That is a sad response

p. 3755

Mr. Blais: […] The hon. member for Grenville-Carleton indicated a concern regarding certain areas of the charter of human rights. I listened this afternoon to the question of the hon. member for Rosedale (Mr. Crombie) who raised the Bakke case and the question of affirmative action. I simply call section 15 to the attention of the House, the non-discrimination section of the resolution. It contains specific provisions so that the non-discrimination rights do not in any way infringe upon positive action programs as reflected through policy or through legislation. That is the type of foresight we used in the preparation of this resolution.

Also, I was somewhat concerned about an article written by Mr. Gwyn in which he quoted the counsel for the Canadian Civil Liberties Association who expressed some reservation about the entrenchment of a bill of rights. I simply point out that the counsel is a hired hand of that particular association, whereas the chairman, Mr. Tarnapolsky, is a strong supporter of the legislation with which we are dealing, including the entrenchment of the bill of rights. I suggest that is the position to adopt. l have never been able to accept the argument that somehow we should be running after 11 legislatures in this country to protect human and civil rights of individuals, in effect something which should be up front. One will notice in the resolution before us that the first section deals with human rights and that subsequent sections deal with rights of individuals. That is the importance which ought to be given them.

I am a lawyer trained in the common law as is the hon. member for Grenville-Carleton. He expressed reservations about codifying, that is, entrenching. I do not have any of those reservations. While I have a great deal of respect for skilful lawyers who are original and like to hunt in libraries in order to unearth principles of common law which may protect their clients, I do not think the man on the street, the Canadian citizen, is interested in hiring lawyers in order to ascertain his human rights. He wants them up front.

—–o0o—–

October 22, 1980, Debate in the House of Commons (click HERE), p. 3943

Mr. Broadbent: […] In the Tory position and I do not say this pejoratively as I am trying to understand it—if we got the constitution back, all it would mean is we would have it back without any reference to a clause at all—without any understanding that there would be anything in it for our Indian and Inuit population or any of our other native people. At least in the present resolution there is something that we can amend and improve.

The same point could be made with reference to women’s rights. There is an affirmative action clause that we like but that can be improved. There is also, in our judgment, a need to deal with the constitution in such a way that it would reverse a number of Supreme Court decisions made in the past decade the effect of which has not been to establish equality between men and women, but just the opposite. In the resolution that the government has offered, we have grounds on which to make improvements on the matter of women’s rights, and we intend to do that.

p. 3947

Mr. Chrétien: Yes, the hon. member asked a question about it. I told him to come to the committee. I did not listen to the hon. member’s speech. I am sorry, but we are going to the committee, and we will reply to those questions. The hon. member raised a question about the possibility of not having affirmative actions, and in our charter of rights there is the possibility of affirmative actions, so this problem does not exist. It is good that the hon. member raised the question. It was a valid question, but it is in committee that we can deal with it, so let us go to committee. That is the whole point. Why do we have this diversion today‘! Now hon. Members opposite will get up and say that we did not debate the constitution today. We have debated it for days and days. In order to waste time there was question of privilege after question of privilege. Some took a whole day, rather than The Constitution debate. Those subjects were not created by us. They were just raised to gain time. We are going to the committee. We will listen to hon. members there.

p. 3954

Mr. Crombie: […] Just the other day I mentioned the Bakke case. In June, 1978, the Supreme Court of the United States—and I think quite rightly-ruled that a black student should not have preference over a white student merely because there was an affirmative action program in the University of California. This has thrown into jeopardy and doubt many social pro- grams, particularly affirmative action programs, in the United States. Anyone who does not believe that can call the Health Education and Welfare Department in Washington in the United States and ask what the effect of the Bakke case was on the development of policy in relation to social programs. By their very nature, Mr. Speaker, social programs are discriminatory.

We have had affirmative action programs for years north of 60, without calling them that, in relation to the hiring of native people. We do not know what is going to happen to those programs. I am not raising idle fears or threats, Mr. Speaker. The problem is real and it must be dealt with before we adopt the principle. In that connection, Mr. Speaker, when it comes to social programs, when it comes to legal rights, non-discriminatory rights, democratic rights and human rights, there is going to be a massive shift of power to the courts, as the hon. Member for Cambridge (Mr. Speyer) said the other day. In all sincerity, I say that may not be an unfair or bad thing, but it must be understood that it is change. It cannot be assumed that there is not going to be a change. We will not become more Canadian as a consequence; we will become more American.

An hon. Member: That is what he always wanted.

Mr. Crombie: It rankles me to hear the nonsense spoken on the other side when they claim that somehow they are being more Canadian. There is nothing more Canadian than the understanding that the common law protects our rights and that ultimately people operating on the principle of consensus will arrive at appropriate opinions.

—–o0o—–

November 12, 1980: 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. 32

Mr. Chrétien: I do not know how Mr. Lucier, I am not in a position to tell you clearly how that can be done. Of course there is some limitation in terms of employment to outsiders in the construction of the pipeline in the North. I say that under this provision of mobility rights it will be possible to pass legislation that could provide for affirmative action. I think that affirmative action should not be based only on a criteria of the origin of the person. I think that would be against the law. We have to recognize the danger in the Yukon situation where there could be a huge influx of people coming and creating the same type of social disturbance that existed in Alaska at the time of the Alaska oil pipeline.

We have some problems at this moment about this Charter of Rights and the affirmative action that exists in our own legislation. I think that we will have to study and try to find some solution. Among these solutions that were provided in this Bill was hiring for people coming from outside should be done outside, that the people will not just flock into Whitehorse and wait for a job there; and the question of training. and so on.

There are some areas there that ought to be looked into, I realize that the social impacts of short term projects like the construction of the pipe line that will last only a few years; and the stability of the society in those areas after the construction occurs, or during the construction time. We are looking into that. I am aware of your concern.

What we are seeking at this moment is to make sure that we do not limit the rights of Canadians to move across Canada and, in fact, in the Yukon most of the residents now who are not Indians have come from all parts of Canada including Windsor, Ontario.

Jean Chrétien & Robert Bockstael, p. 85

Mr. Bockstael: Mr. Chairman, I have one very short last question dealing with non-discrimination.

As it is stated that “everyone has the right to equality before the law and to the equal protection of the law without dis crimination because of race, national or ethnic origin, colour, religion, age, or sex”, does the minister see any difficulty in adding the handicapped, either physical or mental, to that list?

Mr. Chrétien: There are, of course, some drafting problems which would arise. That is why I stated earlier that the Human Rights Commission will continue to exist as well as the Human Rights Act. Very often, rights which are being asserted at this time are very difficult to define in legal terms. There are many degrees of disability involved; some are physically handicapped, others are mentally handicapped. Fortunately, society is becoming increasingly more aware of the protection of those rights. However, it is very difficult to draft a precise legal wording which could be easily incorporated into the constitution and into the human rights charter.

We are examining that problem at the moment. It is not for want of sympathy or personal desire that l say that I do not know whether it is possible today. If it is not, the amending formula will allow us, in future, to add to it rights which are not clearly defineable today

—–o0o—–

November 14, 1980: Appendix CCC-1, Submission of Canadian Human Rights Commission, Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 5 (click HERE), p. A:2

1.5.3 Section 15 of the present form of the Charter of Rights, or any other similar provision of a revised Charter, must allow for no legislative distinctions as between various groups of persons on the basis of a proscribed ground of discrimination except those legislative distinctions reasonably and justifiably related to some bona fide social or economic amelioration of the condition of certain specified groups of persons. For example “age”—guaranteed income supplement; “marital status/situation de famille”—family

[Page A:3]

1.5.4 No negative legislative distinction against a specified group of persons on the basis of a proscribed ground of discrimination would be allowed, (e.g. “race”—the incarceration of Japanese-Canadians; “sex”—section l2(l)(b) of the Indian Act) subject only to such reasonably justifiable limitations as can be demonstrated to be necessary for reasons of compelling state interest. Parliament should make it clear that this limitation is to be interpreted extremely narrowly and rigorously; that it is Parliament’s intention that this limitation will almost never be “reasonably justifiable” or “demonstrably necessary” on the grounds of race, sex, or colour; and that its use would be restricted to legislative distinctions such as age of eligibility to vote and other such purely practical distinctions.

—–o0o—–

November 18, 1980: David Crombie and Alan Borovoy (General Counsel, 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. 17

Mr. Crombie: Thank you, Mr. Chairman. In the second area of questioning, if I could, some people have suggested that the provisions in the resolution now before us would place certain affirmative action programs at least in a state of uncertainty if not place them in a position whereby they may be under-challenged, and I am thinking particularly of affirmative action programs with respect to women, young Canadians and native peoples. I wonder if you had any opportunity to review those sections which might pertain to affirmative action programs and if you had any comment at all?

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

Mr. Borovoy: Section 15(2) would seem to protect programs that are designed to ameliorate disadvantages and in fact it would appear to go further than the kind of affirmative action programs you are talking about. So in its terms it would appear that it would protect those programs and would not leave them subject to challenge. Though I should add, Mr. Crombie, that my legal advice is often worth what you are paying for it.

Svend Robinson & Walter Tarnopolsky (President, Canadian Civil Liberties Association), p. 22

Mr. Robinson: Well, Mr. Chairman, with respect to my friend, Mr. Fraser, I have referred the witness to Section 13. Section 13 does not refer in any way to the right of the accused to remain silent. The B.C. Civil Liberties Association will be making this point in their brief, but I just would say this has been referred to.

My final question if I may, Mr. Chairman, refers to Section 15. I appreciate very much the remarks you have made with respect to the inadequacies of that section as it is now drafted and certainly we intend to propose a number of amendments very much in line with the kinds of suggestions you have made.

I do wonder though whether you have considered two points: the first is the wording “equality before the law”, followed by equal protection of the law and the desirability of changing that to a different formulation, perhaps equality in the law or equality in and under the law so it is very clear that we are not just talking about the administration of the law but we are talking about the substance of the law.

Secondly, Mr. Borovoy, you referred to Section 15(2). I hope that you in your written brief will give very careful consideration to the proposed wording of this in view of the fact that it has been suggested by a number of persons, including the Advisory Council on the Status of Women that in this present wording this is simply not adequate to protect affirmative action plans, it is ambiguous in the term disadvantaged and I wonder if you might at least flag that as something you could look at in a written brief and also if you could comment on the question of equality before the law.

The Joint Chairman (Mr. Joyal): Mr. Borovoy, Professor Tarnopolsky.

Professor Tarnopolsky: Thank you, Mr. Chairman. One just does not know whether the change of the word equality before the law to something such as equality under the law will make a difference. There are certain people who so feel and I must say that in another incarnation as a member of the Canadian Human Rights Commission, we have suggested a different wording and, as you may remember when the Chief Commis-

[Page 23]

sioner was here, he pooled all commissioners and I am one of them and I agreed with the formulation of the Canadian Human Rights Commission.

One is guessing as to what is going to be most effective. I think one can say this, that when particularly Mr. Justice Ritchie in the Laval case introduced the conception that the term “equality before the law” really means no more than dicey, suggested for it, which is, if everyone is equal before the courts of the land.

At that point, he also suggested that he was rejecting the American egalitarian conception of the clause.

Now, what is being proposed here is with the addition of the words “equal before protection”, one is specifically indicating the incorporation of American jurisprudence. Whether that is going to be sufficient, one does not know.

However, it seems that when there is a combination of the nondiscrimination clause with the equality and equal protection clause, that the egalitarian concept is supposed to infuse the equality or equal protection clause.

Certainly, this is the approach taken in Article 26 of the International Covenant and Civil and Political Rights in combining the prohibited grounds.

So, from that point of view, the suggestion where we have placed our emphasis is more on the decision, the hard decision that has to be made either to extend the grounds or not to mention any for the fear that those not mentioned might be excluded.

On the matter of the affirmative action or, in Canada as they are called special programmes provisions, Section 15(2), I think that the point made by the Canadian Human Rights Commission is certainly one we do not disagree with, namely, that we do not want to have to refer to it so broadly that there is no possibility of the review in the sense of the programme being designed specifically for a bona fide amelioration of a person or group of persons; in other words, taking past history, there seems to be no doubt that it is possible with the clause quite as broadly as it is to include affirmative action programmes that we in the Canadian Human Rights Commission would not have considered to be such.

So that on that particular point, I do not think that our position on the affirmative action programme is really any different than that submitted to you by the Canadian Human Rights Commission.

Irwin Cotler (Canadian Jewish Congress), p. 94

Professor Cotler: […] I will now speak to Section 15, Subsection 2. I would like to state that the Committee supports the principle of affirmative action as set forth here in the charter and as earlier set forth in Section l5 of the Canadian Human Rights Act. These components of affirmative action can be discerned in fact from the affirmative action programme with respect to francophones and the public service which itself was a consequence of the B and B report.

Our only reservation therefore is with respect to the question of the incorporation or application of quotas in that regard. If I may, I would just like to excerpt from a brief that I had occasion to participate in on behalf of the Canadian Civil Liberties Association in the consideration of Section 15 of the Canadian Human Rights Act at the time, wherein, we stated that in view of the controversies elsewhere. . . we were referring then to the situation in the United States . . . it would be prudent to note that our recommendations here need not entail any suggestion of reverse discrimination or benign quotas …and here is the key phrase, we are not necessarily asking that qualified whites be rejected, for example, in favour of unqualified non-whites. What we are asking is that more non-whites be encouraged and assisted to qualify and compete.

In conclusion then, Mr. Chairman, as to the matter of affirmative action, it has indeed been with us for some time, although, this is somewhat belied by the fact that there has been little debate or contraversy in Canada about a principle that has already found expression in both federal and provincial legislation and specifically more recently in Section 15 of the Canadian Human Rights Act.

The roots of affirmative action can be traced as I mentioned at least to the B and B Report and to programmes for francophones in the public service which were in place in the government long before passage of the Human Rights Act and to the more recent affirmative action programmes with respect to both native peoples and women.

Many Canadian universities have themselves developed special admission programmes for native students with resulting increases in the rates of native enrolments.

In certain ways then, Section 15 of the Human Rights Act simply legalized practice and philosophy that was already well entrenched in Canada before it and I suggest that Section 15, Subsection 2 of the charter affirms that principle and we associate ourselves with that principle with the caveat as expressed therein with regard to the matter of quotas.

—–o0o—–

November 19, 1980: Jake Epp, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 8 (click HERE), p. 13

Mr. Epp: Mr. Hughes, I am not arguing with the principles you are trying to make or the thrust of it, I am trying to also project in practical terms what does this mean and I would like to get back from what you have been saying to the Northern Pipeline Agency Act. By what has now been euphemistically termed affirmative action, it need not only be for native people, it could be for other groups as well. Would the Chamber under the principle you have just enunciated, that is

[Page 14]

the delivery at the local level of certain goods and services, maybe we should leave it at services, at the local level, would that then confirm the validity of the hiring of native people, for example, in projects north of 60°, especially resource projects because those are the ones we are facing right now?

Lorne Nystrom & Sam Hughes (President, Canadian Chamber of Commerce), p. 19

Mr. Nystrom: Mr. Chairman, I wanted to say to the witnesses before us that, in the ease of Saskatchewan there was real concern, because in the northern part of our Province we have affirmative action programmes for the native people. The way in which the federal government had drafted the proposal this summer would have put in jeopardy some of these affirmative action programmes which are very, very important to the local native people.

We have other programmes in the province, for instance, the Saskatchewan Mining Development Corporation has the

[Page 20]

power to take up to 50 per cent of the shares in any new developments in the Northern part of the province, and with provincial control over resources, once again, that would have been put in jeopardy.

Another thing is that Saskatchewan has a very unique development in terms of being a bit of a social laboratory for many things such as Medicare, and many, many Crown corporations, such as the Sass Potash, Carbon Insurance and the like; and many of these programmes would have been put in jeopardy.

I was wondering, when I saw this part of the brief, whether that was one of the purposes behind your reasoning, whether or not you might want to put some of these progressive and more social democratic programmes in jeopardy. Is that one of the purposes, and is that an expression of the private enterprise philosophy through the constitution?

Mr. Hughes: No, Mr. Nystrom, it is not. We have great sympathy with the motives of such programmes as affirmative action. But where we would have a concern is in the implementation in certain areas. We would not wish for one moment to withdraw relatively legitimate rights of any province to make investment in enterprises within its jurisdiction. That would not be the intent. What we would wish to negate would be the barriers which exist to private enterprise in any given province from without that province.

So we would, indeed, be sympathetic to many programmes, many social programmes, such as affirmative action and would not wish to reduce the legitimate ability of a provincial authority from making investment in its province.

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November 20, 1980: Lynn McDonald (President, National Action Committee on the Status of Women), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 9 (click HERE), p. 59

Ms. L. McDonald: […] Better still would be a statement that equality is a positive objective, and requiring an “evening-out” process towards its achievement. This would be consistent with the view that freedom from discrimination is a positive human right women are entitled to enjoy. It would discourage a narrow interpretation of equality and prevent objections to affirmative action programs which could lead to costly, time-consuming litigation.

NAC recommends a new clause to specify the human right to equality as a positive objective.

[…]

Part I, Section 15(2). We believe that this clause on affirmative action programmes is intended to include women, but nowhere is this expressly stated. Given the sorry record of the courts on women’s rights cases, this is not a matter to be left to judicial discretion. Should affirmative action programmes be

[Page 60]

established we do not want to have to spend years in court proving their legality.

The National Action Committee recommends adding to Section 15(2) the words “including women”.

No delay should be necessary in the application of (1) and (2) of Section 15.

Flora MacDonald & Lynn McDonald, p. 65

Miss MacDonald (Kingston and the Islands): I will turn then to Section 15(1) and (2) and Sections 24 and 25 which are indeed linked to it because these are the more specific as opposed to the general statement of rights. Section 15(1) and 15(2) deals with nondiscrimination rights and as you say there is no real reference to the rights of women as such. That is something which would definitely have to be written into Section 15(1) as far as you are concerned, to make a specific recommendation to the rights of women?

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

Ms. L. McDonald: We would prefer a positive statement, where exactly it goes could be debated, But we would prefer a positive statement, not just the nondiscrimination, partly because of the problems in Section 15(2) in that affirmative action programs could be ruled to be illegal, whereas if there were a positive statement about equality as a good thing to be aimed at, affirmative action programs would be seen as a natural follow-up to that.

Miss MacDonald (Kingston and the Islands): Yes. I realize that; that is Section 15(2) which we are talking about as far as disadvantaged person and putting in the positive statement there, but 1 would think in Section 15(1) it would be necessary to spell out very clearly that every man and woman has the right to equality before the law, that it has to be put in in much clearer terms in Section 15(1) than it is now.

Ms. L. McDonald: Yes. Our complaint with Section 15(1) is not that the sex discrimination is not so clear but that the equality before the law is an inadequate wording, because it has been interpreted only to mean equality in the application of the law and has not been interpreted to mean that the laws themselves must not discriminate against women.

Miss MacDonald (Kingston and the Islands): Indeed this is the very wording that had been used in the Lavell case to deny the rights of women.

Ms. L. McDonald: Yes

Miss MacDonald (Kingston and the Islands): You made the suggestion of adding certain other categories to that, in that section. I think the ones you suggested are marital status, sexual orientation and political beliefs. Now, I would ask you if in that too you would consider, because I think that it should certainly be known that women support this kind of thing, that you include as well the mentally and physically handicapped.

Ms. L. McDonald: We have never canvassed on this point, but I expect that that would find very broad support among women’s organizations.

Miss MacDonald (Kingston and the Islands): Section 15(2), that is the one which I think could kill any affirmative action program that is now in effect in Canada if the courts so decided of if they moved in much the same way they have in

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the past as far as women’s rights are concerned, because it talks about this, it says:

(2) This section does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.

But by and large women are not seen as a disadvantaged group and yet any affirmative action program that is in effect for women could be killed by an interpretation of that section.

Ms. L. McDonald: This is a very dangerous one. Incidentally, I would like to make the point that I am not aware of any real affirmative action programs in the country at the present time in the sense of a program intended to enable women to catch up. The ones which exist simply are to prevent further discrimination, to keep women from falling below where they ought to be. For example, if women constitute 40 per cent of the people who have a certain skill. they should get 40 per cent of the jobs in that area. it is not suggested they ought to 60 per cent to compensate for the fact they only had 20 per cent before. There are not any programs which would actually disadvantage a man to my knowledge in Canada, but should that happen, should there be genuine catch-up programs, there is a very real danger that they would be ruled to be illegal by the Supreme Court. lf we sound to be in contempt of court, it is for very good reasons.

Senator Neiman, Lynn McDonald, & Betsy Carr (Member of Executive, National Action Committee on the Status of Women), p. 73

Senator Neiman: With respect to Section 15(1) and Section 15(2), I have some reticence about going along with the recommendation you have made, particularly under Section 2, that we need to include the words “including women in the affirmative action section.” It says:

the amelioration of conditions of disadvantaged persons or groups.

If, by any chance we do get the amendments and the kind of charter that you otherwise ask for that ensures the equality of women before the law, I really do not see the necessity of inserting that kind of phrase in there; whether you would say “including men” or “including women”; they are persons, and persons before the law. So I do not think that reinforcement is necessary in there; there are affirmative action programmes, and it is my view that, of course, there are going to be disadvantaged women, and they will have to be given special consideration under affirmative action programmes. But there will also be disadvantaged men from time to time for other reasons.

So, I feel that if we get the other amendments to this charter, that in itself should be more than sufficient to protect both sexes.

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

Ms. L. McDonald: We do not agree with that. Women, today, on average earn 60 per cent of what men do for fulltime work. It is very difficult to imagine the tables being turned so much that men average only about 60 per cent of what women earn. It cannot be within our imagination that the tables would be so badly turned that men, as a group, would be disadvantaged so as to require affirmative action programmes.

What we worry about is the fact that women are about half the population of the country. Would the courts decide, women being half the population of the country. that they constituted a group in that sense, a disadvantaged group? I can hear a judge saying, “Women are not a disadvantaged group. My wife has never ever been disadvantaged.”

If you read the cases, you will see remarks of this sort. There has been a terrific inability among judges to understand inequality against women, and I do not think we can leave this one to chance.

The Joint Chairman (Mr. Joyal): Senator Neiman.

Senator Neiman: I understand your concern, but I still feel if the other sections were strengthened and women had recourse to the law under the equality sections, eventually those inequities which are now in existence would gradually be eliminated.

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

Ms. Carr: I wish I could share your optimism that all the other things we are asking for would be granted. I hope that would be so. But we want to be sure that this is quite clear in this particular case, in case the wording is not quite to our liking somewhere else.

Raymond J. Halley, Q.C. (President, Canadian Bar Association, Newfoundland Branch), p. 78

Mr. Raymond J. Halley, Q.C. (President, Canadian Bar Association, Newfoundland Branch): With regard to Section 6 dealing with mobility rights of Canadians, we certainly agree with this provision in principle. We are concerned in the province that despite the affirmative action provisions of Section 15(2), the local employment preference provisions of our petroleum regulations may be ruled invalid by the courts. Particularly when reference is made to Section 6(3)(a). We feel that this Committee should give consideration to a designation of a province such as Newfoundland as a disadvantaged area. This would justify the province in enacting local employment preference provisions, on an interim basis hopefully, and of course these preferences would be eliminated when the economic benefit of the offshore resources put the province on an equal footing, not even with other Canadians but with the other members of the Atlantic Region.

Mary Eberts (Legal Counsel, Advisory Council on the Status of Women), p. 127

Ms. M. Eberts (Legal Counsel, Advisory Council on the Status of Women): […] Our proposal for a change in Section 15 can be found at page 13 of the English version of our brief, page 14 of the French and it is also included in the summary of recommendations. We propose that the Section read:

(1) every person shall have equal rights in law, including the right to equality before the law and to the equal protection and benefit of the law.

(2) Such equal rights may be abridged or denied only on the basis of a reasonable distinction. Sex, race, colour, national or ethnic origin or religion will never constitute a reasonable distinction except as provided in Subsection (3).

[Page 128]

Our proposal does two things: it accepts the idea that some distinctions may possibly be reasonable or practical. That is the idea behind Subsection I and the first sentence of Subsection 2. This is, if you like, our first tier of analysis. Under this section, for example, a law denying drivers licences to married women might well be struck down even though there is no guarantee of equality before the law on the basis of marital status.

We also feel it necessary to tell the courts what basis of distinction just will not be reasonable and that is the second sentence in Subsection (2). The matters enumerated there correspond closely to those highlighted by Mr. Fairweather before you and by the Prime Minister.

We think that if we keep the list of “never reasonable categories” which are explicitly expressed rather short, the courts and the legislatures cannot help but get the idea that in these cases they should and can respond to a signal to regard them as most grave. We should point out, however, that our proposal does not prevent the provincial and federal legislatures from broadening the legislative protections given to those with particular handicaps, given on the basis of age or whatever. The legislators are not hampered by the proposal we have put forward if they desire to expand protection for human rights. What we propose is that everyone in the country will be guaranteed a basic and very secure minimum protection which can expand as judicial awareness of trends in Canadian society gets a chance to operate on cases that come before it.

A brief word about our proposal for Section 15(2), which is discussed starting on page 15 in the English version of our brief, and page 17 of the French version. Subsection 15(2) as proposed is designed to permit legislative programs for the benefit of disadvantaged groups. That is not in our view, even as it stands in its present version, designed to require such programs and that is a distinction that we feel important. It is designed to permit programs that would otherwise be struck down by the courts because they violate Subsection 1, and our comments on this section are predicated on our understanding that that is what the purpose of the Section is.

We think that the present draft, however, has some deficiencies. First of all, it extends protection to affirmative action programs, if you will, that need not be authorized by a legislature, We think that this protection is too sweeping. A private employer. for example, may dream up a sort of crazy affirmative action program in order to justify its discrimination against women or against Indian people or against people who belong to a particular racial minority and we do not feel that this kind of private initiative which is carried on without the benefit of the legislative framework should be rewarded by protection in the charter of rights. Affirmative action is rather a special and heavy-duty remedy against discrimination and we do not feel that it should be available on a random basis to anyone who cares to dream up a program.

We also feel that the Section 1s deficient because it does not tie itself in with the groups mentioned in the proposed Section 15(1). Anyone who proves that they are disadvantaged, so-called, could under the present proposal try to justify a

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program which discriminates against Indian people, against women, against those who may well be really disadvantaged in our society. For example, a program brought forward for the benefit of those poor souls who did not attend Upper Canada college might be justified under Section 15(2) as it now stands, even though that program discriminated against Indian persons who are trying to live on $1500 a year.

We recommend that Section 15(2) be cued in to groups that are mentioned explicitly in Section 15(1), because after all Section 15(2) exists only to prevent Section 15(1) from cutting down a beneficial program and there is no need to have its scope go any wider. and indeed there may be harms brought about because its scope does go wider.

Our proposal for rewording Section 15(2) is found at page 17 of our English brief, page 19 of our brief in French and also in the summary. I think for the benefit of us all I will avoid reading that one and just leave it for discussion and go on to Section 1.

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.

Pauline Jewett & Beverley Baines (Advisory Council on Status of Women), p. 138

Mrs. Jewett: […] Moving on then, there is a lot that one could ask about 15(2). I am sure that the bases upon which there should never, ever be even a reasonable distinction made, should probably be fairly narrow. I would perhaps make it even narrower than you do. But I wondered, when you come to Subsection 3 why it refers only to Subsection 2 because I would have thought that affirmative action is desirable not only in those areas where no reasonable distinction may be made, but also in some areas where a reasonable distinction may be made; for example, those with a disability.

The Joint Chairman (Mr. Joyal): Professor Baines?

Professor Baines: We will draw your attention to the fact that both the existing Section 15, Subsection 2, as it sits in the Charter now and our proposal which becomes 15, Subsection 3, are permissive sections that deal with specifically what we would call the prohibited classifications, and, as such, it is necessary to relate back to the section tier strict scrutiny group that we set up in 15, Subsection 2. But there is nothing to prevent an affirmative action program that, for example, provides employment opportunities for handicapped persons as, for example, the federal Public Service does at this time. There is nothing to prevent that kind of program existing. 15, Subsection—whether it is in the present version 2, or our version 3, are purely permissive sections and they do not control the whole area of permissibility. If someone then wanted to challenge the handicapped program that exists in the federal Public Service, it would be challenged under the first tier test that we established as the test as to whether or not the program is reasonable. I would be very surprised if it were not reasonable.

Miss Jewett: Okay, thank you on that.

Nicole Duplé (Professor, Laval University) & Senator Bird, p. 142

Professor Duplé: However, we want more, we want the section to be even more precise, that the terminology used be much more precise and that is why we ask for protection of equality not only before the law, but in the law in the content of the law itself.

Senator Bird: Thank you very much. This will certainly help us in our deliberations.

[Text]

Under part 2 of Section 15. Now, I am not trying to be difficult but I simply do not understand two things: first of all, you are worried about a private company or employer using affirmative action for the wrong group. Well, surely the courts would bring that out very quickly, I would think; but are you suggesting in order to have an affirmative action program, for instance, in the public service, as I hope we have that you would have to have an act of parliament, that is you would have to get permission from Parliament or from the legislature every time you brought in an affirmative action program. You would have an awful lot of acts, it would seem to me to be rather awkward and I do not understand.

[Translation]

Professor Duplé: We feel that any program, whether it is positive or negative, will have some incidence on other groups of the population which are not beneficiaries, or who are not affected by such a program.

That is why we feel that it is extremely difficult to let the legislatures, or the Government of Canada, or the provincial governments establish programs without any legislative framework. We prefer to encourage those programs which are supported by law. And indeed that is why we are asking that the programs be established under the law.

—–o0o—–

November 21, 1980: David Vickers (Vice-President, Canadian Association for the Mentally Retarded), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 10 (click HERE), p. 10

Mr. David Vickers (Vice-President, Canadian Association for the Mentally Retarded): […] There remains the need for an antidiscrimination clause such as Section 15; however, we wish to convey to your Committee the urgent necessity to add to the specific grounds, and I quote:

“handicapping condition”, whether physical or mental

The year 1981 will be International Year of the Disabled. It would be an appalling commentary on our Canadian values if we failed to entrench in that year, in our new constitution. protection for all Canadians who live with a handicap whether real or perceived. The usual objection raised to inclusion of handicapped as a prohibited ground of discrimination is that such a measure might obstruct programs designed to remedy the effects of the long history of negative discrimination. We believe that the usual exceptions to affirmative action programs can relieve this concern. And you have dealt with that in the subsection to Section 15.

[…]

[Page 11]

[…]

Finally, we join with many other Canadian organizations and ask that the words “handicapping condition, whether physical or mental”, be added to the list of prohibited grounds ofdiscrimination found in Section 15. Thank you.

—–o0o—–

November 24, 1980: Francis Young (Legal Advisor, 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

Mr. Francis Young (Legal Advisor, New Brunswick Human Rights Commission): Mr. Chairman, I take great pleasure in having this opportunity to present the Committee with our views on the proposed Charter of Rights in the constitution.

First, I would like to deal with paragraph 15(2). The New Brunswick Human Rights Commission supports this paragraph in principle but proposes that it be amended in order to avoid a possible problem.

It is recognized today that affirmative action programs are essential to the reintegration into Canadian society of disadvantaged minorities who, for many years, have suffered the cumulative effects of discrimination. Programs like this would be precluded under paragraph 15(1) so it is essential that it be maintained in paragraph 15(2).

However, the Commission feels that the scope of paragraph 15(2) is too wide since it authorizes not only affirmative activaction programs provided for by law but also those which are not.

Therefore, our Commission recommends that only programs undertaken in accordance with the law fall under paragraph 15(2). This would avoid …

[…]

[Page 33]

This would avoid removing the affirmative action programs from the scope of paragraph 15(2) which is essentially a continuation of paragraph 15(1) or the exaggerated affirmative action programs like those which include “quota” for example. On the other hand, programs which have been entrenched in the law would not lead to abuse as frequently.

Senator Irwin & Noel A. Kinsella (Chairman, New Brunswick Human Rights Commission), p. 42

Senator Irwin: Senator Lamontagne has often said we are not looking at two mutually exclusive things, a constitution and a legislature; that they should compliment each other. Would it not be better to go as far as you have indicated to put “discrimination” or “nondiscrimination because of employment practices”, which is clear, in a constitution and put “access to goods, services and facilities and accommodation” in a federal legislative statute or provincial legislative statute, something that is flexible and changes with the times and the circumstances?

Mr. Kinsella: It would be very difficult to do that under the present model, in my opinion. You will have to go back to square one of the drawing board. If you did that- it would be excellent if it could be done. You will get into the question of the right to work. How is the question of the right to work protected? You are implying that you want to protect the right to work. But the right to work has yet to be enunciated in the resolution as we have it.

So that, that is what I would like to see—the whole thing redrafted. However, I am comfortable with going forward with the present model with some specific recommendations, and I think the affirmative action faculty, expanding Section 15(2) might reach that issue.

—–o0o—–

November 25, 1980: George Braden (M.L.A., Leader of the Elected Member of the Executive Committee, Government of the Northwest Territories) & Senator Austin, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 12 (click HERE), p. 78

Mr. Braden: Well, Mr. Chairman, in the section of the resolution dealing with non-discrimination rights there is a clause which deals with affirmative action programs, that is Section 15(2), and it states that,

…this section does not preclude any law, program or activity that has as its objective the amelioration of conditions of disadvantaged persons or groups.

Now, I am not quite sure what the definition of “disadvantaged persons or groups” is but I think that while perhaps that could be applied in the Northwest Territories to native people or non-native people, or whatever, I do not think that we would want to be described as disadvantaged people. I think we have got tremendous potential and it is just a matter of putting the right conditions in place so that we can take advantage of that potential.

In your discussion, sir, of the pipeline projects and the mining projects I think one thing that I can speak about with some experience is dealing with the major contractors and the unions in southern Canada. I spent a considerable period of time in 1975, 1976 and 1977 working with these people to attempt to translate the great plans that the oil industry had into some kind of action at the level of the contractor and the union, and I must admit that it took quite some time to educate the large contractors and the union representatives about the Northwest Territories and to indicate to them that they had a responsibility to follow through with enthusiasm and vigour the kinds of policies that either the government set down or that the industry itself set down.

I am really quite concerned, particularly in the case of oil and gas development, that the large unions will walk in and not give a kind of preference to northern residents, so I would just generally, I guess, suggest, Mr. Chairman, that the issue of mobility rights and affirmative action programs perhaps needs a little bit more development and we would like to see some special reference, if it is possible, to the preference of perhaps affirmative action programs in northern Canada.

Senator Austin: I would just like to make this observation that you can pass ordinances of the Legislative Assembly with respect to labour conditions in the north and perhaps control the big unions through your own making ability.

—–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. 12

Mr. J. P. Nelligan (Chairman, Special Committee on the Constitution of Canada, Canadian Bar Association): […] For instance, our association has gone on record as favouring the retention of trial by jury. It is a question as to whether such a right should or not be given constitutional protection. Again, the proposals dealing with a fair hearing in the Charter relate only to criminal proceedings; should this be expressly extended to a fair hearing in civil proceedings as well?

Similarly, with regard to affirmative action. we must confess that we have not been able to study all of the implications and ramifications of such a proposal, but we would hope that this provision would not impede the courts in their duty of balancing rights in the context of the times and the facts, or lead to undue restrictions on the rights of other individuals. We can only recommend that these and other questions will be looked at by your Committee prior to the resolution going forward.

—–o0o—–

December 1, 1980: Mary Simon (Member, Inuit Committee on National Issues), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 16 (click HERE), p. 12

Miss Mary Simon (Member, Inuit Committee on National Issues): […] Section 15, as amended, provides:

(1) Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.

(2) This section does not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantaged persons or groups, or the recognition of the aboriginal and treaty rights of the aboriginal peoples of Canada.

Although the proposed amendment is a relatively minor one, it has important implications for the aboriginal peoples of Canada. Aboriginal rights are additional rights vested in aboriginal peoples and are unique to us. It is our view that the constitution, while establishing the general principle of equality before the law, must ensure that our aboriginal rights are not seen as discriminatory. While what we are requesting here may seem to be self-evident to some citizens of Canada, a large number are not familiar with the history of aboriginal peoples in Canada, our special status, or with the fact that we possess and enjoy rights by virtue of our being this country’s original inhabitants. The Canadian constitution, therefore, must make it clear that the right to equal protection under section 15 cannot be invoked to challenge legally our unique status and rights.

—–o0o—–

December 2, 1980: Rose Charlie (Western Vice-president, Indian Rights for Indian Women), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 17 (click HERE), p. 90

Ms. Rose Charlie (Western Vice-president, Indian Rights for Indian Women): […] Another area of potential concern is the entrenchment of a bill of rights. On first consideration, such entrenchment would seem to hold nothing but advantages for native people. After all, who could profit more from a law prohibiting discrimination on the basis of race, colour, or creed?

But there is another side to the story. In some places there is a practice called “affirmative action”, or, sometimes, “negative discrimination”. The purpose of affirmative action programs is to give special advantages to members of groups which are disadvantaged as a result of long-standing discrimination against them, such as black Americans.

Affirmative action programs are especially common in the field of advanced education. In Alberta, for example, if a native student applies to enter law school, he or she is almost certain to be accepted, even over a white student who has better formal qualifications, With an entrenched bill of rights this could be declared unconstitutional on the ground that it involves discrimination. That is not mere speculation. It has actually happened in the United States that laws favouring black students have been declared unconstitutional.

Senator Bird, p. 99

Senator Bird: […] Now, I want to make three small points: one is that your worry about the affirmative action I think is taken care of

[Page 100]

under Section 15(2). I think the reason that is there is to avoid the very difficulty that you were discussing, that Indians are regarded in many areas as disadvantaged groups, many Indians are not because they do not need to be regarded so, but affirmative action I think is safe under that section.

—–o0o—–

December 3, 1980: Bryce Mackasey & David Joe (Legal Counsel, Council for Yukon Indians), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 18 (click HERE), p. 34

Mr. Mackasey: […] The Section 15(2) on affirmative rights, do you think that that is sufficiently powerful or well written or clearly ennunciated? Do you think that section on affirmative rights would somehow alleviate your fears of a mass influx of transients and once again you people will be asked to step aside for the temporary jobs. Would you find any objection to using that section to protect your legitimate position as residents of that area on the expansion that will go on, let us say, on a pipeline project?

Mr. Joe: Well, Section 15(2) is not broad enough at this point in time. It speaks of programs for disadvantaged groups. To include our settlement in that, our settlement has to be a program for a disadvantaged group. It appears to me that that is certainly not the intent of our settlement. Our settlement is intended to entrench certain rights into Canadian law and Section 15(2) is not. . .

Mr. Mackasey: I am talking in the transition period, in the period while you are still negotiating the rights which you eventually want entrenched.

Mr. Joe: If you accept that, one, native rights in Canada has to be enshrined then you are going to have to make amendments to the current proposed resolution.

—–o0o—–

December 4, 1980: Karen Hill (Programme Director, Canadian Council on Social Development), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 19 (click HERE), p. 31

Ms. Karen Hill (Programme Director, Canadian Council on Social Development): […] In summary, if I may, I would point out that in our written brief we have made comments and recommendations on a number of sections which we did not address in our oral

[Page 32]

presentation to you. These include comments on the drafting of the resolution, enforcement mechanisms and recommendations on fundamental freedoms, affirmative action and native rights. We would refer you to our written submission for details on these points.

—–o0o—–

December 5, 1980: Ken Norman (Chief Commissioner, Saskatchewan Human Rights Commission), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 20 (click HERE), p. 12

Mr. Norman: […] In summation, I invite you to consider certain procedural amendments which will accommodate the concerns to which I have addressed my opening remarks this morning. I propose amendments to Section 25 rather than to Section 15 as I am not here seeking substantive changes. You have heard from others far more cogent and eloquent than I as to the substantive changes and you may wish to ask questions about that of me, or Louise, but at this point I am interested in the procedural concern thus, and I think there is some precedent for my proposal in that the proposed charter has already adopted a similar course by choosing to put Section IS on ice for three years. not by an amendment to Section 15 but pursuant to Section 29(2), while everyone scurries about trying to figure out how in the world to implement it for those three years.

So I invite you to consider amending Section 25 to read as follows, the introductory words to Section 25(1) would be subject to subsection (2), and then the words as they appear in the proposed Charter:

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.

Then subsection (2) I propose would read:

no law or practice shall be construed as inconsistent with Section 15 unless any other remedy available and provided for by law has been sought.

There is one other amendment to which I would briefly like to lend our support in this opening statement. Section 47 of the Saskatchewan Human Rights Code gives our Commission authority to approve and monitor affirmative action programs designed to ameliorate conditions of employment, accommodation, education for disadvantaged groups protected by the sheltering umbrella of our code. Section 15(2), as presently worded, has an intention which we support but it literally gives carte blanche to any effort at affirmative action, however half baked or egregious. As the United States Supreme Court made clear in its decision last year in Brian Weber versus United Steel Workers and Kaiser Aluminum and the United States, voluntary affirmative action programs are not acceptable if they unnecessarily trammel the interests of white male employees.

[Page 13]

Under Section 47 of the Saskatchewan Human Rights Code it is our Commission responsibility, after a full public hearing, to give due weight to this vital moral consideration in our deliberations leading to approval or variation of affirmative action programs. Section 15(2) ought to take cognizance of such a statutory responsability, but it ought not to go further, in the name of human rights for all. Thus, I endorse the following language which was presented to you some time ago, on November 14, by my opposite number federally, Gordon Fairweather, Chief Commissioner of the Canadian Human Rights Commission. He proposed this language, which I support.

This section does not preclude any legislative distinction which is justifiably related to some bona fide amelioration of the condition of certain specified classes of persons.

Let me conclude this opening statement with the language which I set down in my telegram to you, Senator Hays and to Mr. Joyal, of November 12. I there said that Section 15 gives rise to both theoretical and practical concerns. Accordingly, I requested that you afford me an opportunity to detail for this Committee the potential friction points between judicial interpretation of Section 15, as it is now worded, as 1 envisaged it, and the orderly administration of human rights legislation across the face of this country of ours, by statutory agencies such as the one which I chair. You have now given me this opportunity, I thank you very much for doing so.

Mr. Chairman, Louise Simard and I are now quite ready to respond to any questions which the honourable members may have for us.

—–o0o—–

December 8, 1980: David Cruickshank (Vice President, Canadian Council on Children and Youth), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 21 (click HERE), p. 31

Professor David Cruickshank (Vice President, Canadian Council on Children and Youth): […] With respect to the phrase in Section 15(2) disadvantaged groups or persons, I am sure you have heard this previously as well, we do not think that old people or children ought to have to be labelled disadvantaged in order to have reverse discrimination or benefit. I think that is a spurious label to attach to any group and we suggest an alternate wording along the lines of having a special need related to a prohibited ground of discrimination.

[Page 32]

Finally, we talk about the wording amelioration of conditions and point out that a court here might be restricted to examining only the object of a law program or activity, and not looking at the substance, what that pretended benefit really does; so we suggest that you make it clear that the courts have the opportunity to really question whether a law program or activity in fact is providing a benefit that allows you to get outside the normal rule of equality before the law.

—–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. 31

Mr. Philip Cooper (Vice-President, Coalition for the Protection of Human Life): […] We are nervous about the affirmative action provision in Subsection (2) as numbered in the present proposed Charter. Although we are in favour of helping the disadvantaged, we are opposed to what is sometimes called reverse discrimination. Conceivably affirmative action in favour of one disadvantaged group could work to the detriment of other persons or groups no less disadvantaged. it might even be used to deny some persons the most basic protection of the law, to achieve some supposed benefit for some other person or group.

We therefore propose the following: renumber the Section as 15(3) and add the following words

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. . . provided that such law program or activity shall not result in material detriment to any other person or group.

Tamra Thomson (Ottawa Caucus, National Association of Women and the Law), p. 60

Ms. Tamra Thomson (Ottawa Caucus, National Association of Women and the Law): We are speaking now of Section 15(2) in the proposed Charter. This grants the right to have affirmative action programs. and of course any meaningful guarantee of equal rights for women must not preclude the methods necessary to overcome the cumulative effect of past discrimination. Therefore, we have a necessity for affirmative action programs. However, these programs are necessarily an exception to the specific prohibition against distinction. Therefore, any exception must be very tightly worded so that it does not subvert the first function of the equality clause which is specifically to prevent distinction and discrimination.

The wording which we have recommended is set out on page 14 of our brief. It reads as follows:

Nothing in this Charter limits the authority of any Parliament or the legislature to authorize any program or activity designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by any group of individuals when those disadvantages are or would be based on or related to sex, race or other ground protected under Section 15(1).

I would just like to go back to the typographical error which does appear in the brief, on the sixth line of the recommendation. It should read “group of individuals”.

We feel that this proposal has many advantages over the proposal in the Charter. First of all, it expands the affirmative action section to nothing in this Charter. This parralels the wording of Section 16(2) which allows for the extension of language rights.

Secondly, it requires that any proposed affirmative action program first be scrutinized by government, and of course this is important so that any means of getting around this is tightened up, the government first of all has to scrutinize the program.

Thirdly, the proposal limits affirmative action programs to disadvantaged groups and not to disadvantaged individuals.

And fourthly, and possibly most important, there is nothing in this Section 15(2) of the proposed Charter which relates the disadvantaged groups which an affirmative action program is supposed to relate to, back to the grounds of prohibited distinction in Section 15(1). We feel this is a serious omission because it could permit, for example, the program to overcome

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regional disparities which could discriminate on the basis of race or sex. So by referring the affirmative action subsection back to the prohibited grounds we would ensure that this problem does not arise.

Walter McLean, Tamra Thomson, Deborah Acheson (Member of the Steering Committee. National Association of Women and the Law), & Monique Charlebois (Member of the Steering Committee, National Association of Women and the Law), p. 70

Mr. McLean: […] I would also welcome from the delegation some further comment on the matter of affirmative action as a means of enforcing or addressing the principle of justice, not only being done, but being seen to be done; because at the moment when the question of the implementation of affirmative action is raised, the comment comes that this will create a reverse discrimination.

Very often when this matter is pressed by women’s groups and others who are concerned about the principle, the answer is that we will be creating an injustice and that two wrongs do not create a right.

I wonder if the delegation would comment on that principle, and I am interested particularly in the thrust of their presentation today.

Ms. Thomson: We see very clearly the danger of an affirmative action program, or a section which allows it; because, indeed, it is an exception to any guarantee of equality under Section 15.

That is why we have articulated a very tightly worded affirmative action clause. We feel it should be specific in what it allows. We have put in safeguards so that the government must scrutinize any program which is proposed.

We see this being done not through an act of Parliament, every time you want to put in an affirmative action program; but there are mechanisms in place right now in certain acts, for example, the Canadian Human Rights Act, for scrutiny of programs by an appropriate administrative body.

We see the danger, and we have tried to make safeguards against those dangers by having a very closely worded affirmative action clause.

Mr. McLean: I wonder, Mr. Joint Chairman. if I might pursue that a little further in relation to the Supreme Court.

If you were to apply your thinking in terms of women’s representation on the Supreme Court, how would you proceed? What action would you like to see specifically in terms of applying affirmative action principles to that imbalance?

Ms. Acheson: Miss Charlebois would respond to that question.

Ms. Charlebois: Since we see no problems in requiring proportional representation of seats in the Supreme Court, since it presently exists for representation from the civilian law program, which is my jurisdiction, I would suggest that the consultation process might involve some sort of hearings,

[Page 71]

perhaps before the Senate, following, perhaps the American model to ensure that the quality of appointments were satisfactory to groups such as ours and would involve us in the consultation process through Senators and elected members.

The Joint Chairman (Mr. Joyal): This will be your last question, Mr, McLean—a very short one.

Mr. McLean: Thank you, Mr. Joint Chairman.

Would you see embedding a percentage in perpetuity, in other words, in terms of the Supreme Court and the appointments there, surely there comes a point after a period of time where once the imbalance and the accumulative effect of past discrimination has been dealt with, that those provisions would not be necessary.

How would you begin to deal with that, or would you embed that for all times, that 52 per cent would be necessary?

Ms. Charlebois: Why not cross that bridge when we come to it. Until then, I would rather see some sort of proportional representation.

William Black (Member of Executive Committee, British Columbia Civil Liberties Association), p. 110

Mr. Black: […] I would like to run through what we think are the minimum objectives of any right to equality and then compare the language of Section 15 with those objectives.

First, we think it is essential that the right to equality protect against all unreasonable forms of discrimination. The right to equality of all things should not be given to some and denied to others. Unfortunately it seems that Section 15, as it is presently worded, may do just that because it provides that everyone has the right to equality “without discrimination because of race, national or ethnic origin, colour, religion, age or sex”.

It would seem then that the Charter would not protect against unreasonable discrimination on the ground of political beliefs, or unreasonable discrimination on the ground of physical disabilities or unreasonable discrimination on the ground of sexual orientation. We wish to re-emphasize here that the right to equality does not mean that all groups have to be treated absolutely equally in all circumstances. It prohibits unreasonable and discriminatory distinctions. With that qualification in mind. there seems to us no reason not to extend it generally to all people in society and to prohibit all unreasonable discrimination.

[Page 111]

In this regard we have had the advantage of submissions of the Canadian Human Rights Commission to this Committee and we believe that either of the alternative proposals that were made in the submission of the Commission would be a big step in the right direction.

A second objective of the right to equality is that it should apply both to equality in the application of the law and in the substance or content of the law. I understand other groups have raised the Lavell case before you where the Supreme Court seemed to hold that it did not apply to equality in the content of the law.

There is a difference in wording between the proposed Section 15 and the existing language of the Canadian Bill of Rights. Section 15 adds the words “equal protection” and we are hopeful that that would extend the right to equality, not only to the application of the law but also to the content or substance of the law. However, we understand that others have doubts about this and if there is any doubt about it we recommend that the language be modified to remove that doubt.

A third objective of any charter must be to allow affirmative programs to aid disadvantaged groups or groups that have suffered discrimination in the past. That is the intent, it seems to us, of Section 15(2) and we are wholly in sympathy with the intent of that section. We understand again, however, that there is some concern that the word “disadvantaged” may be interpreted narrowly by the courts so as not to give protection to all groups who have historically suffered from patterns of discrimination, and in particular, women. If there is any doubt about that, we would recommend that again you consider modifications to remove that doubt.

Perrin Beatty & William Black, p. 124

Mr. Beatty: […] Could I turn to another issue which is obviously of some concern and that is under non-discrimination rights. You are aware of Section 15 of the Charter, it says everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. And then Section 15(2) says that in the case of disadvantaged groups special programs could be put in place.

[Page 125]

I would like to ask you whether or not your Association has looked at the effect of Section 15(1) as it related to, for example, the drinking age, the voting age, the age required for drivers licences and the like. Is there the possibility that this provision could have the undesired effect that I am sure neither you nor I would want, of striking down provisions which are on the books today, which Canadians feel are every bit justifiable but which do in fact discriminate on the basis of age?

Mr. Black: That is a problem that comes up in many places. We have the advantage here of experience in the United States, and I am sure the Canadian jurisprudence will be different, but I think we can assume that where the American courts have drawn limitations, the Canadian courts would not go further than the American courts have gone. They may not. go as far but they certainly would not go further.

The American courts have interpreted the right to equality so that it allows reasonable distinctions and disallows distinctions that are made for purposes of discrimination or that serve no rational purpose. Obviously the drinking age, requiring people to be a certain age to drive and so on, serves a legitimate purpose, There is no case in which those kinds of laws have been struck down in the United States and I am sure they would not be here.

Douglas Anguish, Jim Sinclair (President, Association of Metis and Non-Status Indians of Saskatchewan), & Wayne McKenzie (Executive Director, Association of Metis and Non-Status Indians), p. 139

Mr. Anguish: There is something else I would like to know from your delegation. I have always thought that affirmative action might help minority groups. Mr. Sinclair, you have indicated in your remarks, that affirmative action has not

[Page 140]

helped you, and that possibly affirmative action programs would not be necessary. Do you want to elaborate on that a bit more?

Mr. Sinclair: Affirmative action was set up to take native people and other handicapped people in and train them and give them jobs.

My own feeling about that is if we had the opportunities and if the educational system was in tune with our people and culture, if we had control over the training programs, and knew about the availability of jobs and were able to identify them, then we could train our own people for those jobs.

What we would be prepared to do then is that we would apply for a job with an equal amount of education and training that another person has, and we would apply on that basis.

But then, if we found that a majority of our people were being discriminated against because of their colour, then we would certainly press government to take some action.

But until that time, I do not want to see Indians get a job because he is an Indian. That would be putting us in a bad light, because you put onto white society again the fact that they have got to hire Indian people and what it does is that rather than promote our people, it promotes more racism against our people because of the forced hiring.

Mr. McKenzie: Could I add something to that. Regarding affirmative action, today the attitude is that what we will do is we will train secretaries through affirmative action programs or other native people in lower jobs within government or crown corporations or private, but years ago during the war, our fathers and forefathers joined the war not because they were brave but because it meant a job and they were able to fly planes in a foreign country at four o’clock in the morning two weeks later but today they put together a large affirmative action program which takes years to train a secretary. I think the attitude is not there that the native people can do the job because other people are applying for it, they are not the Indian people of this country, and affirmative action does not mean that we are supporting or trying to help native people but one that is stealing our leaders from our communities and putting them into the non-Indian population or non-Indian jobs in our communities where we cannot develop our own people. So therefore our people must assimilate and they cannot integrate, they cannot learn the jobs that are needed back home and the skills that are needed so that we can learn from the non-Indian community, so that we can go back our own communities and not have to leave our communities forever in order to be able to be employed.

Lorne Nystrom & Jim Sinclair, p. 148

Mr. Nystrom: I believe you mentioned something to us tonight that is new, that has not been mentioned before, and that is that Section 15 of the resolution before us on nondiscrimination, Section 15 too talks about affirmative action programs and we have had before us some of the women’s organizations, some of the handicapped organizations, some other native organizations and they have been concerned about broadening the affirmative action program to inlude their groups and associations.

Tonight, Mr. Sinclair, you made a statement that you thought instead of helping, some of these affirmative action programs have actually hindered your people.

I wonder if you could elaborate a bit more on this? This is something that is new. Is there anything else that you could add?

[Page 149]

Mr. Sinclair: The affirmative action programs and all these other piecemeal programs have come because of the neglect of governments towards our people, not because the government wants to do anything for our people. It is neglect, complete neglect of our people, and apathy.

—–o0o—–

December 11, 1980: Fred Sussman (Chairman of the Committee on Legislation, Canadian Association for the Prevention of Crime), Jean Lapierre, & Tadeusz Grygier (Member 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. 57

Professor Sussman: Speaking individually, I am aware of the difficulties that the United States Supreme Court has recently had to face with regard to affirmative action programs and it seems to me that in view of the fact of historical discrimination with cumulative effect over decades, sometimes centuries, speaking individually again, it is only right to make such an exception in Section 15. I do not know whether that answer your question.

[Translation]

Mr. Lapierre: Partially, for 15.2

Professor Sussman: But not quite, however?

Mr. Lapierre: Not quite, because Clause 15.1 is really the one which causes most concern to many groups.

Professor Sussman: Clause 15.1?

Mr. Lapierre: Yes, paragraph 1 of Clause 15 where the motives for discrimination are identified.

Professor Sussman: Discrimination, yes.

Mr. Lapierre: And it is really at that level that we are wondering, perhaps your colleague who drafted many constitutional documents could answer us, perhaps for nondiscrimination we should include certain motives or make a rather more exhaustive and open list and then put our trust in the courts.

Mr. Grygier: First, in almost every constitution there is a list corresponding partially to other lists but each list is, in a partial sense, unique. A list is never exhaustive or complete.

So I would suggest probably something rather general where there would be no list mentioning either sex, age or anything else.

My draft was written up only in English, but I do say, for example:

[Text]

Discrimination could be defined as different treatment accorded individuals or groups on the basis of a characteristic irrelevant to the said treatment and this should be prohibited.

[Translation]

I think that would be far better. Could you imagne, for example, that I have a nose like that and I show up for a job as a telephone operator? I can speak English and French, whatever, but I am refused the job because of the shape of my nose.

What is that? Am I being discriminated against? Not according to the constitution because noses are not mentioned there!

So it would seem to me that any list drawn up would never be definite. It is much better to have specific and precise definitions rather than a list.

Senator Bird, p. 74

Senator Bird: […] For example. it would seem to me that you were already protected under Section 15(2). Now, I know a number of people have suggested that women should be included as disadvantaged members of our society, or as groups. Now, of course women are not a group, they are half the population. Some women are discriminated against, some women are disadvantaged, though some of us are not and may be more fortunate.

Now, do you think that it is really a good idea to mention women specifically when they are 51 per cent of the population, surely that Section 2 protects us women but also protects others, and that by putting women in there you are saying that all women are disadvantaged, which of course is not true. We have been for centuries but some of us are less disadvantaged than others, and I wonder if you could put your mind to what I am trying to get at. I am not trying to deprive you of anything by this because, heaven knows, no one cares more than I. It is merely: is this the place to put it? Is it a good idea? Many women who I have talked to are very annoyed at being lumped in like this; those groups that are disadvantaged should be given affirmative action, there is no doubt about that.

Senator Rousseau & Mary Corkery (Coordinator, Canadian Committee on Learning Opportunities for Women), p. 79

Senator Rousseau: Has your group proposed a clause providing for the implementation of affirmative action programs for disadvantaged groups such as women? I am not saying that women are a group, I agree that women constitute half the population. However, since you mentioned that some women are disadvantaged in the educational system, have you proposed such a clause? If so, could you explain the scope and wording of the clause?

[Text]

Ms. Corkery: lf I understand you correctly, you are asking how we propose to deal with affirmative action for women specifically.

We propose that there be enshrined the right to learn as the right of every adult. Every person regardless of age, covers it very well, I think.

In addition, we feel that the mechanism for enshrining that woman’s disadvantaged position is righted would be part 1, Section 15(2), and that the addition of some specific mention of women as a disadvantaged sector in our society. That is the mechanism that we proposed, the one about which we were speaking with Senator Bird a few moments ago.

Linda Ryan Nye (Canadian Committee on Learning Opportunities for Women), p. 80

Ms. Ryan-Nye: Yes. I would like to add something by way of clarification. Section 15(1) and (2) do not keep the redressing strictly to education, and, obviously, our request for at right to learn is not limited merely to women.

We are saying that we have backed up from our promise, We are not here because there is a little problem that we would like you to put into the constitution along with a whole list of others. We have backed up from that problem and come down to the right to learn, what we are saying is that nothing else in this Charter right now will allow us to fight for the changes which must come for the help that must be there in our society, so that it becomes a fair and just society for men and women.

We are saying that if you back-up the problems. you will find those other rights will not deal with the ones that we have had problems with, because we have gone to the Bill of Rights before, and we have gone to the constitution without that right to learn, and we have not been able to come out with the changes and the help and the programs that we need.

—–o0o—–

December 15, 1980: Appendix “CCC-3”, Submission from the Canadian Council on Children and Youth, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 26 (click HERE), Appendix, p. 8

Subsection 15(2) requires a person or group to be labelled “disadvantaged” before receiving unequal, but beneficial, treatment. This has an obviously distasteful connotation in connection with age discrimination. Will our senior citizens have to be labelled “disadvantaged” to receive old age pensions? Will all Canadian children and their families be termed “disadvantaged” in order to get family allowances? We suggest that “disadvantaged” be dropped in favour of “persons or groups having a special need related to a prohibited ground of discrimination”.

A second problem arises with the wording “… that has as its object the amelioration of conditions . ..”. The Burnshine case difficulties again come to the fore. If a court decides that the object of longer sentence for young offenders is “the amelioration of conditions”, the court can authorize unequal treatment. They cannot go beyond the stated object of the “law, program or activity” to find the real substance of the so-called benefit. The courts should have the power and the initiative to question whether a law in fact produces a benefit that justifies unequal treatment.

This would allow courts to question, for example, the residential treatment programs conducted in provincial child welfare

[Page 9]

fare and delinquency facilities. If “behaviour modification” requires and unequal form of detention and sentencing, does it really work? Or would the child be better off facing the penalties that all other young offenders encounter? It should be clear in Section 15(2) that the courts can go beyond the object of a “law, program or activity,” get to the facts, and decide whether “amelioration of conditions” is really taking place.

—–o0o—–

December 16, 1980: Sykes Powderface (Vice-President, National Indian Brotherhood of Canada), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 27 (click HERE), p. 85

Mr. Sykes Powderface (Vice-President, National Indian Brotherhood of Canada): […]

Section 15(2) is designed to ensure that affirmative action programs will not be invalidated by the Charter of Rights.

[Page 86]

This is an important provision. As you may know, the Alberta appeal court has ruled that affirmative action programs in the oil sands projects are invalid because of Alberta’s Individual Rights Protection Act. That case is presently on appeal to the Supreme Court of Canada. Section 15(2) mistakenly sees special programs as simply designed to better the conditions of disadvantaged persons or groups. While it is true that Indian people are a clearly disadvantaged group in Canada today, that will not always be the case. There must be provisions that will allow band enterprises to preferentially hire band members, whether or not the band is disadvantaged. The important value is not relieving poverty, but the survival of the tribes as distinct political, social and economic groups within Canadian society.

—–o0o—–

December 18, 1980: Molly Boucher (President, Federation of Independent Schools in Canada), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 29 (click HERE), p. 66

Mrs. Boucher (President, Federation of Independent Schools in Canada): […] We have a very deep concern with regard to Section 15 of the Charter of Rights and Freedoms dealing with the nondiscrimination rights.

Now, Mr. Chairman, we are not so much concerned about what this section proposes to say but particularly with what it fails to include. In addition to the exemptions that are granted in Section 15(2) for affirmative action programs, we as a Federation feel very strongly that other exemptions ought to be provided.

It is our belief that race, national or ethnic origin, colour, religion, age or sex may be bonafide qualifications or requirements for certain exclusively charitable, philanthropic, educational, fraternal, religious or social organizations or corporations that are not operated for profit and do have as a primary purpose the promotion of the interest and welfare of these particular organizations or corporations.

We maintain that it is a right of an identifiable group or class of person to associate together on grounds of belief, to conduct institutions in the field of education, and this corporate right then stands over against the individual right to

[Page 67]

employment by a teacher of any other faith and subsequently against the right to continued employment where a person duly hired ceases to be in good standing in that community.

Now, there are provisions for such exemptions in the human rights codes of a number of provinces. British Columbia, Alberta, Saskatchewan, Manitoba and Ontario. We have included these statements in our appendices also. You will see that although they are worded differently, the intent is the same in each case.

Now, without this kind of protection or legislation, perhaps it may seem ridiculous but we could, if we followed this to the nth degree, envision a man going to the courts and claiming that he has been discriminated against because he was not hired as the dean of woman. Or, we could see, shall we say, a United church minister going to the courts to say that he has been discriminated against because the Catholic church refused to ordain him as a priest.

Now, these are perhaps laughable but I am sure that the founding fathers of the United States would have laughed equally loudly at the time of the writing of the constitution if anyone had said to him that the constitutional provision for the separation of church and state would, 200 years later, make it possible for one individual to go to the court and to prevent the saying of prayers in the public schools of the United States.

Laurence Decore (Chairman, Canadian Consultative Council on Multiculturalism), p. 126

Mr. Laurence Decore (Chairman, Canadian Consultative Council on Multiculturalism): […] The Council strongly welcomes the inclusion of Section 15 in the proposed Charter. Mr. Chairman, we applaud the inclusion of this section which prohibits discrimination because of race, national or ethnic origin, colour, religion, age or sex. We would, however, suggest the removal of the word “disadvantaged” from Section 15(2).

Our concern is that having disadvantaged included in Section 15(2) may allow courts to rule against beneficial affirmative action programs. We would then recommend that the subsection be reworded to read as follows:

This section does not preclude any legislative distinction which is justifiably related to some bona fide amelioration of the conditions of certain specified classes of persons.

In this way, Mr. Chairman, the latitude of the courts to determine what constitutes disadvantaged is proscribed, however, allowing for what we consider to be important programs to help certain classes of persons in Canada.

Jim Hawkes & Errol Townshend (Chief Editor of “Cultures Canada”, Canadian Cm1sultative Council on Multiculturalism), p. 145

Mr. Hawkes: Now, in relation to Section 15(2), the antidiscrimination clause, it starts out with the word “disadvantaged”, and you have changed the basic sense of that, using the word “ameliaration”.

The difficulty I have relates to briefs we have heard on more than one occasion, but certainly earlier today, where we have had testimony to the effect, from separate school boards, for instance, that the antidiscrimination clause on the basis of religion, coupled with Section 15(2) dealing with the disadvantaged, still might make it impossible for them to run the kind of school system which teaches the values and the religions that they would like.

I suggest to you that in some programs which exist today in terms of multiculturalism, we do not need to ameliorate something, because we would have difficulty proving disadvantage and yet as a society would like to provide support for those activities; and the basis for involvement in those activities might relate to religion, sex, age and so on.

I am wondering if that is a thought you have not had, or whether you would support groups who have been here earlier and who want some sense of not having something in the Charter that would stop enrichment of that kind of diversity in terms of schools?

Mr. Townshend: I think that perhaps you may be misreading it. We are not comparing the word “disadvantaged” with the word “amelioration”.

We are taking out the word “disadvantaged” and substituting certain specified classes of persons, because we fear that by putting in the word “disadvantaged” the courts may use that as a way of limiting or determining which categories of persons these particular affirmative action programs should help.

That is the reason why that has been suggested there.

[Page 146]

Mr. Hawkes: If I were to substitute the word “enrichment” rather than “amelioration” would I be speaking to the sense that you want to leave with us?

Mr. Townshend: I do not think that particular word would fit, because you are talking about enrichment of the conditions of certain specified classes of persons.

That is not what we are really aiming at with the section. What is being aimed at is an attempt to give somebody an opportunity to at least come to the starting line, so that there is equaling of opportunity in terms of access to jobs and that sort of thing. That is what that particular section is aimed at.

Mr. Hawkes: So you do not have a concern about going beyond the starting line, you want the things to come to the starting line?

Mr. Townshend: Yes, and after that the people will be on their own.

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

Mr. Splane: […] We do have two points about which we think that Canadians should be concerned about and the constitutional docu-

[Page 149]

ments ought to take into account, and we mentioned some of those.

A different type of concern is that while Section 15(2) refers to affirmative action, the possibility of affirmative action, we are somewhat concerned that it might be struck down by the courts and prevent certain types of selective or categorization that may be required. I think I can speak for social workers generally as being strongly in support of universality, universality in income security and over time, universality in social services, but the road to universality has to be by various forms of selectivity and categorization and specialization and affirmative action, and we wonder whether the terminology in Section 15(2) provides for that, so we raise it for the consideration of this Committee.

—–o0o—–

January 6, 1981: David Crombie & Carole Christinson (Afro-Asian Foundation of Canada), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 32 (click HERE), p. 36

Mr. Crombie: I would like to come to a question of substance on the recommendations, Mr. Chairman.

Recommendation 6—a very good recommendation, dealing with discrimination in the question of employment, education, health, political and social institutions and so on.

If you put your recommendation number six in relation to your recommendation number nine, which talks about affirmative action programs, one of the difficulties which the Civil Liberties Association had or the difficulties that the Canadian Commissioner of Human Rights had as well as the two groups on the status of women was the difficulty with Section 15 of the government’s proposal—Section 15 dealing with those rights as well as affirmative action proposals.

Those groups felt that there ought to be changes made in Section 15, and, interestingly enough, if you take your Sections 6 and 9, you have precisely formed the problem that there ought to be those nondiscrimination rights as well as the opportunity for affirmative action programs.

I wonder if you have been able to come up with any solution which they have not yet come up with and indeed which they have put to this Committee as a problem?

Ms. Christinson: Let me make sure I understand your question correctly. Are you suggesting that there is some conflict between these two things, Section six and Section nine, or are you saying that you recognize that there is a need for both.

Mr. Crombie: Not only I, but the bodies that I have talked about recognize the need for both, but also that Section 15 does not provide that; and I am wondering whether you have any solution which they have not yet offered.

The short point is that, of course, courts can interpret nondiscrimination programs, affirmative action programs, so that they become discrimination, as opposed to nondiscrimination.

Ms. Christinson: Yes. I cannot honestly say that to my knowledge or any members of our association have any solution to the problem that we recognize as very sticky.

We have a great deal of experience, looking at what has happened in the United States with these programs also.

We would suggest to the honourable Members of this Committee that affirmative action is important.

Quite apart from the suggestions which you are making on Section 6, which says that no person should be discriminated against on the basis of the various factors over which he has no control.

We think it is important that affirmative action be taken with regard to those groups who have suffered the kind of

[Page 37]

injustices that nonwhite groups have tended to suffer over a period of years.

We think these groups and very explicit kinds of situations, such as jobs, education, et cetera, should be spelled out and that Section 15 should simply be widened.

—–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. 15

The Honourable Jean Chrétien (Minister of Justice): […] I prefer to be open-ended rather adding some new categories with the risk of excluding others.

Section 15(2) of the draft Resolution permits affirmative action programs to improve the conditions of disadvantaged persons or groups. I am proposing an amendment to read:

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.

This section permits programs designed to achieve equality which might otherwise be precluded by the rules against discrimination in subsection 15(1).

The amendment will not preclude other programs to assist the disadvantaged-be it on grounds such as handicap, marital status or other bases of discrimination identified by the courts. It is simply an assurance that an affirmative action program based on a recognized ground of non-discrimination will not be struck down only because it authorizes reverse discrimination for the purpose of achieving equality.

—–o0o—–

January 14, 1981: Jean Chrétien, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 37 (click HERE), p. 12

Mr. Chrétien: Because you cannot have mobility for one part of Canada and no mobility for the other parts of Canada. We say that there is some special problems and we have made provisions for affirmative action if need by in the Charter, and we could have employment practices that would still be legal despite the mobility section but it would have to be based on something other than the origin or the location of the person as a citizen of a province and something like that.

I know, for example. that there is a big concern over native employment in Northern Canada, so that this is an affirmative action that is possible but it is not based on region, it is based on social problems that have to be sometime resolved by affirmative action and it is covered there.

However, if we were to make a global exception of the Yukon in relation to mobility, it would be very difficult not to

[Page 13]

do that for other provinces, and as explained yesterday in reply to Mr. Gimaiel from Lac-Saint-Jean who made a very important point that Canada has been built on the mobility of people, and as the whole thrust of this Charter is to make mobility even more possible in the future, especially by the fact that the francophones moving outside of Quebec will have their education in French and the anglophones who decide to go and work in Quebec will have the right to their education in English, I think that increasing the mobility is a desirable goal.

So my view is that most of the programs as developed in the legislation for the creation of the pipeline in the Northwest Territories and the Yukon, the Alaska Pipeline to Canada. most of the plans that we find in that legislation would still be more or less applicable in using the affirmative possibility that exists in the Charter.

—–o0o—–

January 20, 1981: Senator Connolly & Robert Kaplan (Solicitor General and Acting Minister of Justice), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 41 (click HERE), p. 18

Senator Connolly: There is a little help, I think, in Clause 15(2), where it says Clause 15(1) does not preclude any law, program, et cetera, that has as its object the amelioration of conditions of disadvantage to individuals or groups including those that are disadvantaged because of, and then the list is given

[Page 19]

That seems to be a little clearer and a little closer to the objective that you set out to achieve in Clause 1, and perhaps I could observe as I talk about Clause 15(2) that with the differences in the language between Clause 15 (1) and (2), and I ask you to think about this, I do not need an answer now, the courts perhaps would say, ‘Well, the language is different and perhaps Clause 15 (1) does not, without looking at the French version, go as far as Clause 15(2)’ and perhaps it could be looked at.

I raise the point only for the purpose of raising it because it gave me a little concern.

Could I go on to another point. As a result of what is done and purported to be done by Clause 15, certainly the courts are going to be given a larger role in the determination of rights. So too are the legislatures, I suppose, because through the legislatures, whether it is Parliament or the provincial legislatures, rights can be enlarged and can be declared and can be acknowledged, to use Mr. Crombie’s word, in addition to the rights that are mentioned in the Charter. I think, however, we should remind ourselves that any such legislative action does not put those rights into the Charter and for such new declaration of rights to go into the Charter, then I take it that we would be subject to the amending formula for the constitution in the normal way, am I right?

Mr. Kaplan: That is correct.

Senator Connolly: When you come to the courts, and this is the point that gives me some concern, the courts are being given a wider discretion to interpret a good many of clauses in the proposed bill, and it has said that the courts will, in effect, be legislators and this has been criticised.

Let us say for the sake of argument that the courts do declare a certain right or do forbid a certain type of discrimination not specifically mentioned in the Charter saying that under the provisions of the open ended part of Clause 15 they can do this. What is the effect of that court decision in respect of the Charter?

I take it that you would say to me if the court is the court of final resort, that the rule of stare decisis would apply and while the right declared would not be entrenched, it would still be part, perhaps I could even use the words, of the supreme law of the land, that it would be just as permanently there as an established right as anything that is in the Charter, is that so?

Mr. Kaplan: Stare decisis is a self-imposed restraint on courts. There is no principle in the Charter, for example, making stare decisis effective.

Senator Connolly: It is a well known legal rule.

Mr. Kaplan: It is, but lit is also a rule that courts could change and the way I would view a judicial interpretation, it would be a gloss on the Charter in the sense that it would certainly restrain legislative action by a legislature or Parliament that might violate it. I do not think a government would bring legislation with the legal opinion from its advisors that that legislation was contrary to a provision of Charter as

[Page 20]

[Text]

interpreted by the courts. So that it would restrain a legislature and the only way, I suppose, that a legislature could get around it, if I could use that somewhat inappropriate expression, would be by a constitutional amendment, but a court could reinterpret the question. I know that happens in the United States.

Senator Connolly: In other words, change its mind.

Mr. Kaplan: Yes, that does happen in the United States.

Senator Connolly: That has happened.

Mr. Kaplan: Yes.

Senator Connolly: That has happened, and there is an evolution in the courts.

Mr. Kaplan: Yes. I am just being given a very interesting point by Mr. Tassé that court interpretations of the meaning of statutes is normal and it is taken account of by legislatures and by the public.

Senator Connolly: But if the effect is even analogous to the way I described it whereby a decision of the court would be a definitive statement acknowledging a right, then what you are doing I suppose is adding to the constitution of this country through the declarations of the court.

Could I ask this simplistic question: if that is the case, is there any sense in saying that the schedule to the proposed act here should contain also references to the various court decisions on constitutional cases since 1867?

Mr. Kaplan: I would argue that they certainly are implied. Our constitutional history is full of important judicial decisions that affect the interpretation of the BNA Act and other statutes and that are taken account of by the public operating under those statutes and by legislatures. It could be a useful addition to have …

Senator Connolly: Even though it might not necessarily form part of the schedule?

Mr. Kaplan: No, that is correct.

Robert Kaplan & Svend Robinson, p. 22

Mr. Kaplan: I would deal with each of them all together and say it would be open indeed to a court to do that. I do not see any particular advantage of the expression that you have proposed over the one which is proposed in the bill.

Listening to Senator Connolly, I thought that the position might be argued the other way, that because in Clause 15(2) the word “including” has been used but the framework is the same, the items of discrimination cited are the same, that the litigant might get the benefit of both of those expressions.

One could argue that Clause 15(1) and Clause 15(2) should be read together and, therefore, “in particular” is to be read in the sense of “in particular” meaning “including”; and I think that in Clause 15(2), I think the word “including” would receive interpretation more in line with what I have suggested, because the words “in particular” appear in Clause 15(1).

Mr. Robinson: Mr. Chairman, I would ask at this point, if the law officers would care to go back and perhaps review the wording of this particular clause.

Mr. Kaplan: I think a plain reading of the wording indicates that the particulars of discrimination are intended as exemples or as particular items of discrimination, but not the total grounds of discrimination that the general words that begin the subclause are intended to convey.

I do not see that “in particular” or “including” are either more effective than the other, and that perhaps having them both increases the direction of this bill that general grounds of discrimination can be defined.

Jake Epp, p. 99

Mr. Epp: […] It is the last four words we are adding.

Clause 15(2): There is an unfortunate connotation inherent in the use of the word ‘disadvantaged’ in the government’s amendments. We suggest an alternative proposal which we believe avoids this problem. I should tell you, Mr. Chairman, I think that all of us have wrestled with the word ‘disadvantaged’ and how better can we express it in constitutional form.

We would propose that:

Sub-section (1) does not preclude any statutory distinction that has as its object the amelioration of the condition of any class of persons.

Appendix “CCC-13”, Proposed Amendments by Jake Epp, p. A:2

Section 15-Equality Rights

15(1). Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

15(2). Subsection (1) does not preclude any statutory distinction that has as its object the amelioration of the condition of any class of persons.

—–o0o—–

January 21, 1981: Svend Robinson, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 42 (click HERE), p. 8

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

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

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

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

—–o0o—–

January 27, 1981: Svend Robinson, David Crombie, & Fred Jordan (Senior Counsel, Public Law, Department of Justice), speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 46 (click HERE), p. 93

Mr. Robinson: Mr. Chairman, if I may, I think I understand Mr. Crombie’s question. It would appear that since Subclause 15(2) relates back to Clause 15(1) which, in turn, deals with the question of equality before the law and equal protection and equal benefit of the law, that in essence, Subclause 15(2) is an affirmative action plan to ensure that any programs which are conducted in an attempt to achieve the objectives in Clause 15(1) are not defeated by what would appear to be the absolute proscription in Clause 15(1).

However, there is not over-riding clause in Clause 15(1) as it now stands, so that the mobility rights clause as we read it, would still apply, and by virtue of that there is still a concern that by applying mobility rights in their very broad wording as stated in Clause 6, that there could be a real threat to the Inuit people.

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

Much of what I wanted to say, Senator Roblin has already said.

But I have one question I would like to ask. It deals with the resolution itself. I wonder if any member of the New Democratic Party in response to the resolution, could indicate what relationship they see between the resolution and the opportunity for mitigation under Clause 15(2).

It is that part of the Charter dealing with affirmative action programs. It indicates that under Clause 16(1), equality before the law and equal protection, that clause does not preclude any law, program or activity that has as its objective the amelioration of conditions of disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.

I recognize it does not include man made disaster.

Since you are using the word “aboriginal”, it seems to me that it is possible at any rate, that that could be found under “race”, but I am not sure.

Mr. Crombie: Thank you very much.

I wonder if I could ask one of the law officers of the Crown, Mr. Chairman, whether they see, as Mr, Robinson has indicated, that Clause 15(2) relates somewhat narrowly to the absolute proscription of Clause 15(1) and therefore, we would have Clause 6 over-riding Clause 15.

In short, Clause 15 offers affirmative action programs. They are concerned with affirmative action programs.

The argument is that they need this resolution because Clause 15(2) would not apply.

Mr. Jordan: Mr. Chairman, if I can answer Mr. Crombie’s

[Page 94]

question, we read Clause 6 as being subject to Clause 15(2). In other words, Clause 15(2) talks about any law which creates an inequality on the various grounds or the non-specified grounds but certainly the specified ones are raised in this particular situation. We feel in talking of programs, activities or laws that allow for affirmative action programs, we are talking precisely about the kind of thing that is addressed in the mobility rights where you want to create special benefits for those who have been disadvantaged on the basis of one of the grounds specified in Clause 15(1), so therefore I would say that Clause 6 will be read subject to Clause 15(2).

Now, with regard to the environmental consideration that you raised, obviously that is another consideration but in terms of a program or activity, job creation activity where you want to give special preference to persons falling under the categories of Clause 15 (2), that would be covered.

John Fraser, p. 96

Mr. Fraser: […] I have only a minute or two and I do not think I will be able to complete my remarks before six, but what I want to point out to members of the Committee and to the Minister is this: Clause 15 is clearly aimed at affirmative action programmes for disadvantaged people, it uses that word.

Now, Mr. Minister, what this section, this proposal that has been introduced by a member of our Canadian Native community, this proposal is trying to prevent actions that will create disadvantaged people, and there is a clear distinction between what Clause 15 does and what this Clause is trying to do.

The Minister says that there will be problems. Well, there are only problems because our record for well over a hundred years has been to run away from them. Now, I say our record, I say our record as non-Indian and non-Inuit people, and we have justified things that most of us cannot in fundamental morality justify if we have to look at them.

Now, the time has come to stop putting it off. Now, I recognize that this is a broad provision and I recognize that it will be applicable to Indian people in the Province of British Columbia, and all I can say is that it is long overdue; and the words “reasonably and justifiable”, those words and those concepts are laced throughout this proposal that the government has brought in, and we have been told on all kinds of other sections that that will give a commonsense check on something that will go beyond commonsense, but I urge honourable members to consider what the section is aimed at doing. It is to try and make sure that we do not turn people into disadvantaged people and then have to have affirmative action programmes to do it, to do something for them.

Coline Campbell & Jean Chrétien, p. 98

Miss Campbell: Could a provincial government which gives a contract to a company have a clause in that contract to the effect that they hire local residents first? Would that be offending the mobility rights?

Mr. Chrétien: As I have explained earlier, if it is based upon affirmative action for one area, it could be applied: but it does not relate to the province where the person is coming from, because that would be discrimination against this mobility clause.

Miss Campbell: But local residents would prefer to a province or area.

Mr. Chrétien: Depending upon how it is phrased, really. If it is discrimination which applied to other citizens of the province, that would probably be all right; but if it is related to the residents of Nova Scotia and excluding the residents of New Brunswick, that would be against the Charter of Rights.

Warren Allmand, p. 100

Mr. Allmand: […] So I think it is quite consistent—this amendment, or something along the lines of this amendment in particular for the North is consistent with our policy.

It is also consistent with the affirmative action provision in Clause I5, where you say there cannot be discrimination in the first part of the clause. But in the second part of the clause you bring in a program to favour disadvantaged groups that will allowed. I think this kind of amendment, since it deals with a disadvantaged group and it is to protect their cultures, their economies and their communities, it is very consistent with Clause 15 (2) and as I say, with the policy of this government over a long period of time.

Consequently, I will conclude by urging the Minister to consider seriously the substance of this amendment, and if he feels he cannot accept it in the terms in which it is presently I would ask him, if possible, if we could stand this so that he could at least accept it in terms of north of 60° where the situation is particularly sensitive and where the native peoples are still in the majority and look to that part of the country as a homeland in many respects, as French-Canadians look to Quebec, although they live in many other parts of the country.

—–o0o—–

January 29, 1981: Ron Irwin & Jake Epp, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 48 (click HERE), p. 7

Mr. Irwin moved.—That Clause 15 of the proposed Constitution Act, 1980 be amended by striking out lines 6 to 9 on page 6 and substituting the following:

“(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.”

Mr. Epp moved,—That the proposed amendment to clause 15 of the proposed Constitution Act, 1980 be amended by striking out all that portion of subclause 15(2) following the words “preclude any” and substituting the following:

“statutory distinction that has as its object the amelioration ofthe condition of any class of persons.”

After debate, the question being put on the subamendment of Mr. Epp, it was negatived on the following show of hands: YEAS: 6; NAYS: 15.

Svend Robinson & Jake Epp, p. 40

Mr. Robinson: […] I would move that the proposed amendment to Clause 15 of the proposed constitution act, 1980 be amended by striking out in the proposed Clause 15(2) everything following the words “conditions of disadvantaged” and substituting the following:

classes of individuals including those that are disadvantaged on the grounds specified in that subsection.

Mr. Epp: Thank you, Mr. Chairman, I will be brief.

If you would read Clause 15(2) of the government, you will notice the word “disadvantaged”. That word has, we think,

[Page 41]

unfortunate connotations and that the word would be better replaced with the distinction of “condition of any class of persons”.

We think that the effect would be the same but it would put it into a positive framework in terms of the constitution rather than in a negative perspective and I believe also, Mr. Chairman, it should be noted that this wording or the sense of the wording was suggested by Mr. Fairweather as well as a number of other groups that appeared and supported the thrust of the clause but felt the word “disadvantaged” was one which could be better served with words such as “and any class of persons”.

Fred Jordan (Senior Counsel, Public Law, Department of Justice) & Jim Hawkes, p. 42

Mr. Jordan: Well, Mr. Chairman. I guess the distinction I was making in the first case is that there are a number of so-called affirmative action programs, which this subclause is called in the jargon, which do not necessarily find a basis in law. This one. I do not know by what the device the government has authorized the expenditure of funds for this program, that is why I was saying that presumably it comes under some law authorizing it, which is the requirement of the amendment as proposed by your party.

Mr. Hawkes: The government’s amendment says “law program or activity”, our amendment says “statutory distinction”.

One of the things that it seems to me to be important in whichever choice of words you use is that many decisions could be made by civil servants in government when you have “law, program or activity”, that civil servants could make those decisions to discriminate on the basis of things that we find in Clause 15(1) without examination by parliament, and that if people found those distinctions to be offensive they would not be as challengable in court using the government’s wording of “law, program or activity”. Whereas, if the wording proposed by our party on the basis of statutory distinction would imply that any distinction which was based on the ideas in Clause 15(1) would have to be debated in public prior to their utilization.

Am I correct in that kind of idea related to the choice of words?

Mr. Jordan: Mr. Chairman, I think the simple answer is yes, but perhaps I can give an illustration of the concern we have with limiting it in that way,

To take the universities, for example, they receive block funding from provincial governments without any conditions attached as to how they spend the money except for educational purposes within the university. They may decide. as some of the various faculties have, to mount affirmative action programs to encourge women to enter law school, native people to enter law school; these do not have any statutory authority in that when the Government of Ontario or Quebec or whichever made the appropriation; and these funds may be used for affirmative action programs.

I think it would be most unfortunate if those kind of programs were excluded simply because in each case parliament or the legislature did not sit down and put in clause

[Page 43]

saying: affirmative action programs can be undertaken in spending these funds.

I think you are aware of the way in which appropriations are voted by Parliament, the definition of the range of things which are encompassed by them are frequently not very elaborate.

Svend Robinson, Jean Chrétien, Fred Jordan, Jake Epp, James Manly, Lorne Nystrom, & James McGrath, p. 43

Mr. Robinson: […] The amendment would change the proposed Clause 15(2) as follows:

I move that the proposed amendment to Clause 15 of the proposed Constitution Act, 1980 be amended by striking out in the proposed Clause 15(2) everything following the words “conditions of disadvantaged” and substituting the following:

classes of individuals including those that are disadvantaged on grounds specified in that subsection.

[…]

Mr. Chairman, just speaking very briefly to this proposed amendment, the essential change in this from the government’s proposal is that we would remove reference to individuals. It is our view and the view that was expressed by many witnesses appearing before this Committee, including the Canadian Human Rights Commission, that it is inappropriate to talk in the context of affirmative action plans about disadvantaged individuals, that what we are concerned with is disadvantaged

[Page 44]

groups or classes of individuals and that there could be very serious problems in mitigation if we were to extend this concept, this very worthwhile concept of affirmative action to individuals.

One need only point to the Bakke decision in the United States as an example of some of the difficulties which may ensue.

Then the second change, Mr. Chairman, is simply to refer to the grounds specified in that subclause generally rather than specifically referring back, although in light of the defeat of the earlier amendment that portion of our proposed amendment is not of particular concern. The major concern to emphasize is to remove the reference to individuals from the affirmative action provisions and to make it very clear that we are talking about disadvantaged groups of Canadians.

[…]

Mr. Robinson: Mr. Chairman, perhaps if I ask a specific question of the Minister or his officials it might focus on the issue.

Mr. Minister, through you, Mr. Chairman, why was it felt desirable in your proposed Clasue 15(2) in both the original and the revised versions to include references to individuals, disadvantaged individuals, as opposed to specifying disadvantaged groups when we are dealing with affirmative action?

Mr. Chrétien: It is related to the reason why we cannot accept your amendment and I will ask my advisor to reply.

Mr. Jordan: Mr. Chairman, I think the provision is in there out of an abundance of caution. I think one can think of the situation where the very small employer is hiring only one individual, he chooses one based on one of the prohibited grounds of discrimination.

One can arguably say, well, he is picking out of a class which has already been identified as one of those for affirmative action programs, but I would be very reluctant to have a court interpreting that as saying you are hiring one individual, he is a native, you do not fall within the category because it talks about classes of individuals on whose behalf the affirmative action is being taken.

[Page 45]

So I guess it is the lawyerly caution that we did not want to leave a situation where the court could strike down that kind of arrangement.

[…]

Mr. Epp: Mr. Chairman, I move that Clause 15 of the proposed amendment of the Constitution Act, 1980, be amended by striking out the word “age” in Clause 15(2) and substituting the following:

age or mental or physical disability.

[…]

Mr. Epp: Mr. Chairman, speaking to the amendment. you will recall that the same amendment. The same wording was approved in Clause 15(1). We are moving it in Clause 15(2) to conform to what has already been agreed to in Clause 15(1).

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

May I request the attention of the honourable Minister of Justice to reply to the proposed subamendment as introduced by honourable Jake Epp?

Mr. Chrétien: He can reply for me.

Mr. Jordan: The answer is yes, Mr. Chretien.

The Joint Chairman (Mr. Joyal): So I suggest that all honourable members vote immediately.

Mr. Epp: Before we change our minds. Subamendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to then come back on the main amendment, the one identified G-21, Clause 15(2), page 6, the amendment as introduced by Mr. Irwin.

Mr. Robinson.

Mr. Robinson: Mr.Chairman, do you have N-23-1. which I believe should be dealt with before we proceed to the main amendment G-21?

The Joint Chairman (Mr. Joyal): No, it is a new subclause, it should be Clause 15(3) and now we are dealing with Clause 15(2) and before I call the vote or invite honourable members to introduce any other amendments in relation to Clause 15 I have to complete this, get a debate on Clause 15(2), and seeing no other speakers on the proposed amendment I would like to

[Page 46]

then call the vote on the amendment as introduced on behalf of the government party.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like then to invite the honourable members to take the next amendment, it is an amendment identified as N-23-1, Clause 15(3), page 6. The purpose of this amendment is to add a new Clause 15(3) after Clause 15(1) and Clause 15(2).

I would like to invite Mr. Robinson to move and introduce the amendment in the usual way.

Mr. Robinson: Mr. Chairman, Mr. Manly will be introducing this particular amendment.

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

Mr. Manly: Thank you, Mr. Chairman.

I will move the clause in English and I will ask Mr. Robinson to do so in French.

I move that Clause 15 of the proposed constitution act, 1980 be amended by adding immediately after line 9 on page 6 the following:

(3) Clause 15(1) shall not be interpreted so as to deny or limit the recognition of the aboriginal and treaty rights of the aboriginal peoples of Canada.

M. Nystrom: En français, il est proposé

Que l’article 15 du projet de Loi constitutionnelle de 1980 soit modifié, par adjonction, après la ligne 9, page 6, de ce qui suit:

«(3) Le paragraphe (1) n’a pas pour effet de nier ou de restreindre la reconnaissance des droits ancestraux ou issus de traités des peuples autochtones du Canada.»

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

Mr. Manly: Thank you, Mr. Chairman.

Clause 15(2) that we just passed makes provision for affirmative action programs for individuals and groups that are disadvantaged. Clause 15(3) would extend this and make provision for recognition of aboriginal and treaty rights for the aboriginal peoples. Some people might think that they are already covered by Subsection (2). We know that most aboriginal peoples are clearly disadvantaged in economic terms in our society, but Mr. Chairman, aboriginal people want to retain their identity as peoples but they do not always want to remain disadvantaged.

Our society does not want them to remain disadvantaged. We must have some provision so that we can recognize their rights without having to categorize them as disadvantaged people.

This subclause makes provision for programs that can recognize aboriginal people not as disadvantaged but as people who have a unique place in Canadian history and deserve a unique place in Canada’s constitution; and I would like to ask the

[Page 47]

Minister if he agrees with my argument and if he is wiling to. in the spirit that he manifested earlier, accept the amendment.

Mr. Chrétien: I agree, not with the amendment, but with the comments made by the member. I do think that there are some technical reasons in terms of not to be repetitious as this problem is being dealt with in other sections. and I will ask Mr. Jordan to give the technical reasons.

Mr. Jordan: Mr. Chairman, I was somewhat unclear until I just heard the explanation of what the purpose of this amendment was.

Perhaps I can put it in these terms and see if it coincides with Mr. Manly’s explanation. Presumably the intent of this amendment is to ensure that nondiscrimination on the basis of race will not be interpreted as denying the ability to recognize the rights of aboriginal people which are based on race. In other words, quite apart from disadvantage, that it will not deny rights which they may have, aboriginal, treaty or otherwise.

Mr. Manly: This is a presumption.

Mr. Jordan: Is that a correct understanding of your intention?

Mr. Manly: Our intention is that this should not apply to aboriginal rights which could be interpreted on the basis of race, yes.

Mr. Jordan: Our view is that the amendment is unnecessary, I think for two reasons. First of all, the constitution under Section 91.24 clearly recognizes that laws may be made for indians and for indian lands and therefore, laws that are passed to benefit indians under that section are not going to be struck down as being discriminatory because the British North America Act has already made specific provisions for dealing with people on the basis of race.

Secondly, I think Clause 25 of the Charter as proposed by the government expressly provides that the charter of rights which includes the nondiscrimination based on race, does not deny the existence of aboriginal, treaty or other rights of the aboriginal people that may exist. So I have considerable difficulty in seeing why it is necessary to insert in this particular provision an assurance which appears both out of the constitution in Section 91.24 and in a later provision of the charter.

Mr. Manly: I suppose Mr. Chairman, that it is a question of paramountcy and there is some fear on the part of aboriginal peoples that Clause 15 could very definitely be used to deny them some of the recognition of their rights and that if the situation came before a court and Clause 15 of the Charter of Rights was put over against Section 91.24 of the present BNA Act, there is some uncertainty as to which would have paramountcy.

Mr. Jordan: I think perhaps, Mr. Chairman, Clause 52(1) deals with this and it talks about the Constitution of Canada being paramount and that includes the Charter and where

[Page 48]

there are two provisions which would appear to be in conflict, the courts would have to read both of them to give them the meaning which they are intended to have. The one is intended to be able to pass laws that are for native peoples; but quite apart from that, I think the proposed Clause 25 is all comprehensive. It says, the statement of any rights in this, which includes the right not to be discriminated on the basis of race, shall not in any way be construed as denying the existence of rights that pertain to aboriginal peoples in relation to treaties, the Royal Proclamation and other relevant bases of claims.

Mr. Chrétien: Mr. Manly, I think, there is a danger that when you write in a bill two or three sections that relate to the same problem, the courts do not read the proceedings of these meetings after the law is passed and very often they read the text and they ask why there are three or four different interpretations, and it is clarity for simplification and no danger that one text might be used against the other. It is better to concentrate our wishes to protect the rights of the aboriginal peoples of Canada to have certain rights not to be denied to them. It is better to concentrate that on the clause that affects them specifically, otherwise you always run the risk that the one clause might be played against the other, and we do think that this amendment is unnecessary and could create some problems. So, having doubts about it, it is better to clarify and there will be some amendments coming up later on on that issue which will clarify the situation about the aboriginal people of Canada, and I do not want to accept this amendment because there is danger of confusion. We agree that this should not deny the opportunity of the natives of Canada, the aboriginal peoples of Canada, to have a special recognition of their rights eventually and so on. It is for the reason given by Mr. Jordan and for the reason I gave you that we do not accept that, but the argument you made in relation to the aboriginal people, we concur. Even if we concur, we do not have to accept this amendment.

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

Honourable James McGrath.

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

Very briefly, we accept the explanation of the government. We appreciate the concerns addressed by Mr, Manly in the amendment that he put forward, but we feel that it is unnecessary and indeed, as the Minister points out, if you put too much in there, it could weaken the rights that are already addressed in the constitution and for that reason we are going to vote against the amendment.

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

Mr. Manly, to conclude before the Chair calls the vote.

I see that honourable members are ready for the vote.

Amendment negatived.

[Page 49]

The Joint Chairman (Mr. Joyal): We then come back to the whole of Clause 15 dealing with non discrimination rights.

Clause 15 as amended agreed to.

—–o0o—–

February 9, 1981: Svend Robinson, speaking in the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Issue 56 (click HERE), p. 3

Mr. Robinson (Burnaby) moved,—That the proposed amendment to clause 15 of the proposed Constitution Act, 1980 be amended by striking out in the proposed subclause (2) everything following the words “conditions of disadvantaged” and substituting the following:

“classes of individuals including those that are disadvantaged on grounds specified in that subsection.”

—–o0o—–

March 4, 1981, Debate in the House of Commons (click HERE), p. 7898

Miss Jewett: The two others I would like to mention were not supported by either of the other two parties when the New Democrats introduced them in the committee. However, I think several members on the government side were willing at any rate to look at them very seriously. One is the use throughout the charter of the word “person” rather than “any individual”, “anyone” or any of the other words being used. The word “person” should be used throughout the charter.

The other one has to do with Section 15(2), the affirmative action section of the equal rights provisions. The suggestion is that affirmative action programs which are to be allowed—indeed, encouraged—should relate to disadvantaged groups. It is not necessary to include individuals. In fact, it might be dangerous in some ways if we did.

The whole purpose of Section 15(2) is to ensure that the equality rights set out in Section 15(1) do not prevent any law, program or activity which has as its object the amelioration of conditions of disadvantaged groups. However, unfortunately it says “disadvantaged individuals or groups” and thereby makes it possible that a single individual, as happened in the famous Bakke case in the United States, could get some advantage that the group of which he was a member already had in abundance, and thereby prevent an individual in another group from being able to be advantaged by an affirmative action program. One has to look at the condition and situation of a group as a whole, and if a group as a whole is advantaged then the fact that a single member of that group is not should not give him or her something special. When one looks at the group as a whole and discovers it is disadvantaged, then it is the group as a whole for whom the affirmative action program should be undertaken.

I stress this because the women I have talked with and with whom other Members of Parliament have talked as well—and there are many from all over Canada—feel that to ensure that the intent of the charter is carried out so far as women are concerned and, indeed, other disadvantaged groups are concerned, it is vitally important to make this deletion from Section 15(2).

A moment ago I mentioned that the New Democratic Party had during the course of the committee actually introduced all but one of the amendments which are now being proposed by the ad hoc committee on women and the Constitution, and we would be more than happy to introduce them all again, but this may be procedurally extremely difficult to do. If it is, I can only urge the government, and specifically the Minister of Justice—I am afraid I have given up on the minister responsible for the status of women—

Some hon. Members: Hear, hear!

Miss Jewett:—with all the power at my command to seriously consider highlighting those three amendments I have mentioned and to look seriously at the others as well.

—–o0o—–

March 5, 1981, Debate in the House of Commons (click HERE), p. 7953

Mr. Siddon: […] Let us talk for a moment about the entrenched bill of rights. What should it contain? Should it be simple or complex? Should it be rooted in the system of common law or civil law? Where do the rights of one person end and the rights of the next person begin? These are important questions which have not been clarified. That is why many of us believe the present charter of rights is flawed and premature.

Under the present proposal for a charter of rights, the only rights and freedoms which will exist after the charter becomes law are those which are presently recognized, as set out in Clause 26, and those other rights and freedoms which are clearly delineated in the charter.

This is the civil law approach. It is fraught with danger for minority groups, provinces and all those free individuals and community groups which enjoy certain privileges in this country.

I favour, as I believe most Canadians do, the common law approach, based on a thousand years of history, which grants to every citizen in a free democratic society all the rights in the world, all the rights in the country that they should wish, except in so far as those rights are restricted by law.

All rights are not absolute; of course some of them are. The basic fundamental rights most definitely are; but many of the things we call rights actually lead to areas of conflict. It is a very important principle in every phase of civilization that the rights of every person should in theory end where the rights of the next person begin. That is generally the case for the so-called fundamental rights; rights to freedom of worship, freedom of speech and the others listed under the fundamental rights definition. In reality, however, there will often be an overlap. If there is an overlap, the rights of one person or group will supersede those of another person or group. Then we can ultimately expect discrimination, arguments and ultimately personal conflict because we are setting up various classes of citizenship. I am not suggesting we should not do that in special cases.

I am going to suggest in a moment that affirmative action is important in some cases, but if rights are written down and become too complicated they will lead to trouble. We saw that before the committee, with many special interest groups lining up, wanting to be named in the body of the Constitution.

In cases where special status is perhaps required to redress an imbalance, such as affirmative action for women in the work force, or affirmative action with respect to the use of French language in the House of Commons or in the governments of the land, maybe there is a case for these special rights being accorded. However, we must always remember that if those affirmative action measures ultimately have their desired effect, then one day you will want to eliminate that special status. You will want to do that because you have corrected an inequity, an injustice within society. Such a correction or reversal from special status will be required from time to time and must be accomplished, not by referendum, but by a wise

[Page 7954]

deliberation in the democratically elected Parliament and legislatures of our land.

The proposed charter of rights will in fact entrench permanent discrimination against certain persons and groups, in perpetuity. Those whose rights are abused; those who are given second-class status by a decision of the courts, must have recourse to review by their democratically elected representatives. There is no other way to ensure justice for them.

This charter of rights would perpetrate second-class citizenship upon many Canadians; young and old, men and women with various special interests. Let me give a few examples of rights that come into conflict. There are the rights of smokers and non-smokers in a closed room. There is the question of the rights of the unborn child contained within his or her mother’s womb. Who has the right to life; the mother or the child? Who has the final say?

What about the rights of those who happen to know both our official languages and therefore qualify for a better job? What about the rights of the unilingual person who does not qualify for the better job? Those are rights in conflict. On the use of property, should the owner have the right to obtain the highest and best use of his property or do the neighbours have some interest in that question?

There is the question of environmental concern versus industry, of development; the question of the right to strike versus the right to work. With regard to denominational education, should a teacher be able to insist on teaching in a Roman Catholic school even though he or she may not be a Christian? I say no, of course not! That is what this concept of special status would produce. One way or another a determination by the Supreme Court of Canada would fix and entrench into the future of our country for a long, long time, various degrees of discrimination.

What about the rights of the employer as distinct from the employee? We talk about individual rights. The person who may be alcoholic or have some other personal anomalies may not be viewed as employable by the employer. Should the employer be forced to hire that person? What about landlords versus tenants? Does the landlord have any say over who shall be allowed to rent and occupy his premises? These are examples of rights in conflict.

My assertion is that we need a simple entrenched bill of rights which covers the most fundamental rights, and a subsidiary list of special rights. I would not call them secondary rights, but special rights. We must make a distinction between special rights and these fundamental rights, because special rights are there for a special purpose, that is to right inequities; to give special advantage and status to the handicapped, the native people, women in the work force and the francophone minority in a particular province. They would get special status and special rights, but they would not be entrenched and engraved in stone forever and a day.

There must be a mechanism of flexibility which would allow for those special rights to be altered and adjusted with time so as to eliminate inequity, at the point where the other party becomes second-class. The present charter does not allow for this. It is rigid, inflexible and ambiguous.

—–o0o—–

November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, Verbatim Transcript [Including Agreement on Constitution] (click HERE)

(3) Charter of Rights and Freedoms:

The entrenchment of the full Charter of Rights and Freedoms now before Parliament with the following changes:

(a) With respect to Mobility Rights the inclusion of the right of a province to undertake affirmative action programs for socially and economically disadvantaged individuals as long as a province’s employment rate was below the National average.

—–o0o—–

November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, New Brunswick Proposals concerning The Charter of Rights (click HERE)

The remaining provisions of the Charter of Rights would be enacted, but would not come into force for three years. These include:

Legal Rights (section 7 – 14)

Equality Rights (section 15)

Enforcement (section 24)

General (sections 27, 28)

This concept of deferred application for three years presently exists in the Charter, but applies only to section 15.

During this three-year period these deferred provisions would be placed on the agenda of the Constitutional Conference to be convened annually to deal with these and other matters. At the and of this period six provinces acting together could prevent the coming into force of any provision by depositing resolutions of their legislative assemblies with the Clerk of the Privy Council opposing the coming into force of the provision. Such resolutions could be adopted at any time after two years had elapsed from the coming into force of the other provisions of the Act. The two-year restriction is designed to ensure at least two years of open discussion prior to a commitment being made by a legislative assembly, during which a consensus on the scope of the Charter might be reached and amendments secured, if necessary.

—–o0o—–

November 23, 1981, Debate in the House of Commons (click HERE), p. 13123

Hon. Judy Erola (Minister of State (Mines)): Mr. Speaker, I am very proud at this moment to be a Canadian woman. Equality for myself and all Canadian women has ceased to be an elusive dream. Instead, it is taking on the shape of reality, moulded by generations. It is equality not according to the old maxim “As persons in matters of pains and penalties”, but as persons in the matter of rights and equality. You can bet that we want full equality.

What is this equality that we women have been fighting for? How many generations of men and women have asked the question: What do women want? Well, for our grandmothers who were not even considered persons and who fought for the vote, and for our mothers who supplied the labour force during the war and since, and for our sisters and daughters and granddaughters, I will tell you what we want. We want the rights in the Charter of Rights and Freedoms guaranteed equally to male and female persons. That means the original wording of Section 28:

Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. It is that simple. We want the reference to Section 28 in the override clause, Section 33, deleted. The charter will then carry a forceful statement of equality. This will give the courts a strong direction that sex discrimination cases require their strictest scrutiny.

For those who argue that affirmative action programs are jeopardized by the removal of Section 28 from Section 33, I remind them that the present constitutional proposals clearly state that affirmative action programs are not subject to the normal rules barring discrimination on the basis of sex. To go back to some of the things which have happened to women in this country, I am sure there are many who are not aware of the fact that long before the era of the suffragists, women in Quebec, Nova Scotia and New Brunswick had been entitled to vote and hold office. Why? What happened? Simply because it had not occurred to anyone to make laws to prevent them from voting. Of course, you can guess what happened when this existed; legislation was enacted to remove that right.

p. 13129

Miss Jewett: There are good things in this resolution, but it is almost heartbreaking to see the legislative override of some of the most fundamental and most important parts of the Charter of Rights and Freedoms. When the proposal was put before the House of Commons I think we all felt that section 15, the equality of rights section outlawing discrimination on grounds of race, colour, religion, sex and so on, and its second component, the affirmative action provision encouraging legislatures to take affirmative action for disadvantaged groups, was one of the strongest parts of that charter. Perhaps it was because there were no women present, or perhaps it was because there were no black people present that the first ministers of this country crippled that section of the charter. It is all very well to say that a specific act can discriminate only for five years, but to me that almost destroys the intent, the purpose, the symbolism and the substance of that section. To then go on and apparently subject Section 28—which the women of Canada strove so hard to get in the Constitution and which the House unanimously passed in April-to an overriding provision that a legislature or the Parliament of Canada could deny the very rights and freedoms referred to in this charter guaranteed equally to male and female persons and that the government would do this apparently as an oversight, that it had not really thought about Section 28, the section to which Parliament gave a great deal of thought, adds insult to injury.

Hon. members will remember that the very day after the accord was signed I asked the Prime Minister (Mr. Trudeau) whether Section 28, the section guaranteeing women’s equal rights with men, was included. I remind you, Mr. Speaker, that the Prime Minister said:

I can only answer that my impression is that the clause would continue. I have not been involved in the drafting which went on between provincial and federal officials yesterday afternoon and, I believe, during the night as well. […]

p. 13130

Miss Jewett: Not a single member of this House should support it. But if any members do support it, do you know what they would be doing, Mr. Speaker? It would mean that we would be taking an enormous backward step, we would be denying the principle of equality of men and women. We would not have even the status quo. We would be going farther and farther backward.

I hope the minister responsible for the status of women agrees, I believe she does. I hope she does. She was not part of the negotiations. I do not know whether she asked, but she certainly did not know what had happened to Section 28. I hope that neither the minister responsible for the status of women, nor any woman nor indeed any member, would support this section unless the amended version that we are discussing today is brought in by the government itself on the ground that the cheapening of Section 28 was not intended in the accord.

For those who would argue that they can only accept the quality of women conditionally, I believe that they too are saying that they do not believe in the fundamental principle of equality of women with men. They are denying, as I said a moment ago, women’s human right to equality. It is a goal to be achieved because we do not have it yet; it is a goal to be achieved in and of itself. That is how a lot of us see the original Section 28. We see this, as I say, symbolically as an expression of the equality in our society of men and women, their entitlement equally to the rights and freedoms in the charter. We see it that way, as I say, symbolically. We also see it as a section in its original form of enormously important substance, because we do not in fact have equality, and when I say “we” I mean women. We do not in fact have equality today. Therefore, Section 28 becomes a goal to achieve.

For those who worry that affirmative action programs would somehow be ruled out by Section 28, I can only say that as long as an affirmative action program is a program that will help to achieve what is in Section 28 there is no conflict whatsoever, and Section 15(2) and Section 28 would be in harmony.

Similarly, if there is a discriminatory act under Section 15(1), and it is a positive act which is helping to achieve greater equality for those who do not have it now, then it too would fall within the ambit of the broad statement of equality in Section 28.

The fears then, it seems to me, although legitimately raised, are not legitimately founded. As a previous speaker said, there should be no taking of credit; every woman‘s group in Canada had a great deal to do with getting the paramountcy clause, as I call it, Clause 28, included in April. I personally think the former minister responsible for the status of women had a great deal to do with getting the clause in.

—–o0o—–

November 24, 1981, Debate in the House of Commons (click HERE), p. 13197

Mrs. Mitchell: I agree with the ad hoc women’s committee—I am quoting them rather frequently because I have seen them on many occasions in my office—that we have a long way to go and that there will be many cases to test these constitutional provisions. But we are pleased that such a good start has been made. By including Section 28 with no override, we expect, for example, that the Supreme Court of Canada will never again be able to rule against women as it did in the Lavell, Bédard and Bliss cases, as well as in other instances mentioned by the hon. member for Kingston and the Islands (Miss MacDonald) and yesterday by the hon. member for New Westminster-Coquitlam (Miss Jewett).

Some concerns have been expressed that guaranteeing equal rights for male and female persons may undermine affirmative action programs designed to open opportunities for women and for other minorities, such as the handicapped and ethnic groups. Of course, this will be tested in the courts. However, it is our clear understanding that equality is a constitutional goal, a goal which will apply to all provinces as a result of the change. Provincial affirmative action programs are the means of achieving equality through equal treatment of women and other minorities. This means the goal of equality will be entrenched and that affirmative action will be constitutionally protected as a means to achieve equality. We now have a federal principle, Hopefully this will be an impetus to encourage affirmative action programs within federal jurisdictions,

[Page 13198]

provincial jurisdictions and also in the municipal levels of government.

—–o0o—–

March 25, 1982, Debate in the House of Commons (click HERE), p. 15803

Hon. Lloyd Axworthy (Minister of Employment and Immigration): Madam Speaker, I am very pleased that the hon. member asked that question because it gives us the opportunity to explain that over the past several months we have been engaged in a very active discussion about affirmative action programs with the business community. As the bon. member knows, two parliamentary committees, one on the handicapped and one on the labour market, recommended that we attempt to develop affirmative action programs in co-operation with the major participants, the labour unions and the business community. That is exactly what I have been doing for the past several months, meeting with these organizations to discuss with them what the most effective means would be of assuring equality of access in the workplace. We are continuing those discussions because we happen to believe that the most effective way of introducing such plans is not through confrontation with these groups, as the hon. member’s party advocates, but through co-operation with those groups. That is what we intend to do.

REQUEST FOR COMPULSORY ACTION PROGRAM

Mrs. Margaret Mitchell (Vancouver East): Madam Speaker, my supplementary question is directed to the Prime Minister, and it concerns the constitutional rights of women. The Minister of Labour, the Minister of State for Mines, and the Minister of Employment and Immigration have now publicly stated that the government’s voluntary program on affirmative action for women in the workplace bas failed, yet the cabinet has refused to implement a policy of compulsory compliance even for the civil service and companies that have contracts with the federal government. Since the new Constitution endorses affirmative action as a means for women achieving equal rights, will the Prime Minister, as the leader of this country, stop being such a bloody hypocrite—

Some hon. Members: Oh, oh!

Mrs. Mitchell:—will he tell the women of Canada that he now will require a policy

An hon. Member: Withdraw!

Madam Speaker: Order, please. I cannot quite recall if that expression is parliamentary or not. I do not have the list before me.

An hon. Member: It is not.

Madam Speaker: Since it is creating such a ruckus, perhaps the hon. member would like to rephrase ber sentence.

Mrs. Mitchell: Thank you, Madam Speaker. Would the Prime Minister stop being such a hypocrite, and will he now require a policy of mandatory affirmative action in the public service, and for all companies that do business

Madam Speaker: Order, please. I am told that that expression really cannot be used, and I would ask the bon. member to withdraw it or rephrase the sentence.

An hon. Member: Withdraw!

Mrs. Mitchell: Madam Speaker, I would be very pleased

Some hon. Members: Oh, oh!

Madam Speaker: Order, please. Would the House allow the hon. member to respond.

Mrs. Mitchell: Thank you, Madam Speaker. I would be pleased to withdraw. I know the sensitivities of the Prime Minister. On behalf of Canadian women would be please introduce compulsory compliance affirmative action programs in the federal jurisdiction?

Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, I am in no way as sensitive about this matter as the NDP apparently is. The hon. member should remember that she is a member of a party which bas elected a government in Saskatchewan which opposed the insertion of women’s rights in the charter.

Some hon. Members: Hear, hear!

An hon. Member: That is not true.

Mr. Trudeau: Surely the hon. lady—if I can call her that—

Some hon. Members: Oh, oh!

An hon. Member: Withdraw!

Mr. Trudeau:—should not forget that when members on all sides of this House were trying to insert a guarantee into the Charter of Rights that women would be treated equally, the last holdout when the Minister of Justice was trying to get the province to come aboard was Premier Blakeney of Saskatchewan.

—–o0o—–

ENDNOTES

[1] Subsection (1) reads, “15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

[2] This is a summary of the draft, which we hope to include in a future report.

[3] For the draft itself, please see Part 1. The draft is from Jul. 4, 1980, and tabled at the same conference.

Previous Versions of this Report: [Version 1]

PrimaryDocuments.ca

REPORT: Affirmative Action, Section 15(2) of the Constitution Act, 1982

SECTION 15(2)

Affirmative Action

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 15(2)’s Public Meaning

Drafts of the Charter of Rights and Freedoms

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 15(2)’s Public Meaning

ENDNOTES

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REPORT: Affirmative Action, Section 15(2) of the Constitution Act, 1982

SECTION 15(2)

Affirmative Action

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 15(2)’s Public Meaning

Drafts of the Charter of Rights and Freedoms

PART 2:

The Primary Record (Debates, Papers, Committees…) Pertaining to Section 15(2)’s Public Meaning

ENDNOTES

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