REPORT: Multiculturalism, Section 27 of the Constitution Act, 1982
Date: 2023-04-27 [Updated: 2023-07-24]
Citation: PrimaryDocuments.ca, Section 27, Multiculturalism: Compilation of primary documents to assist in interpreting the public meaning of Section 27 of the Constitution Act, 1982, Second Ed. (July 2023).
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Compilation of primary documents to assist in interpreting the public meaning of Section 27 of the Constitution Act, 1982
Short Table of Contents
Part 1: The Drafting History of the Charter of Rights and Freedoms Pertaining to Section 27’s Public Meaning
Part 2: The Primary Record (Debates, Papers, Committees…) Pertaining to Section 27’s Public Meaning
The Constitution Act, 1982
Part I. Canadian Charter of Rights and Freedoms
Section 27 This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Drafting History of the Charter of Rights and Freedoms Pertaining to Section 27’s Public Meaning
Drafts of the Charter of Rights and Freedoms:
January 12, 1981: Draft submitted to the Special Joint Committee on the Constitution of Canada
February 13, 1981: Draft Tabled in House of Commons from the Special Joint Committee on the Constitution [Final Report]
April 23, 1981: House of Commons Draft, used in Reference Re: Resolution to Amend the Constitution
November 18, 1981: House of Commons Draft
November 24, 1981: House of Commons Draft
November 26, 1981: House of Commons Draft
December 2, 1981: House of Commons Draft & Vote
Statutes and International Agreements:
1978: Bill C-60: An Act to amend the Constitution of Canada
Drafts of the Charter of Rights and Freedoms
January 12, 1981: Draft submitted to the Special Joint Committee on the Constitution of Canada
26. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
(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)
February 13, 1981: Draft Tabled in House of Commons from the Special Joint Committee on the Constitution [Final Report]
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
(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 57 [Final Report] (13 February 1981). Click HERE)
April 23, 1981: House of Commons Draft, used in Reference Re: Resolution to Amend the Constitution
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 9470-9471. Click HERE)
November 18, 1981: House of Commons Draft
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 12983-13011. Click HERE)
November 24, 1981: House of Commons Draft
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 4128-4130. Click HERE)
November 26, 1981: House of Commons Draft
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13338-13346. Click HERE)
December 2, 1981: House of Commons Draft & Vote
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13632-13663. Click HERE)
Statutes and International Agreements
June 20, 1978: Bill C-60: An Act to amend the Constitution of Canada
4. To these ends, the stated aims of the Canadian federation shall be:
—to expand the horizons of Canadians as individuals, and enhance their collective security and dis as a people, by affirming through their daily lives and governance the fundamental proposition of the new nationality created by their forbears, that is to say, the proposition that fraternity does not require uniformity nor need diversity lead to division; and as elements of that proposition;
(ii) to ensure throughout Canada equal respect for the many origins, creeds and cultures and for the differing regional identities that help shape its society, and for those Canadians who are part of each of them; and
(Source: Bill C-60, An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters, 3rd Sess, 30th Parl, SC, 1978 (June 20, 1978). Click HERE)
The Primary Record (Debates, Papers, Committees…) Pertaining to Section 27’s Public Meaning
1967-1970: Report of the Royal Commission on Bilingualism and Biculturalism (HERE)
October 10, 1978: Report Recommendation on Bill C-60, p. 9 (HERE)
October 14, 1980, Debate in the House of Commons (click HERE)
October 16, 1980, Debate in the House of Commons (click HERE)
November 19, 1980, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 8 (click HERE)
November 20, 1980, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 9 (click HERE)
November 27, 1980, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 14 (click HERE)
December 8, 1980, Mr. Norman Whalen, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 21 (click HERE)
December 9, 1980, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 22 (click HERE)
December 10, 1980, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 23 (click HERE)
December 15, 1980, 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. 26, p. 45 (click HERE)
December 17, 1980, Mr. René Simon, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 28 (click HERE)
December 18, 1980, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 29 (click HERE)
December 19, 1980, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 30 (click HERE)
January 6, 1981, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 32 (click HERE)
January 8, 1981, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 34 (click HERE)
January 12, 1981, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 36 (click HERE)
January 20, 1981, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 41 (click HERE)
January 29, 1981, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 48 (click HERE)
January 31, 1981, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 50 (click HERE)
February 17, 1981, Debate in the House of Commons (click HERE)
February 19, 1981, Debate in the House of Commons (click HERE)
February 20, 1981, Debate in the House of Commons (click HERE)
March 5, 1981, Debate in the House of Commons (click HERE)
March 10, 1981, Debate in the House of Commons (click HERE)
March 11, 1981, Debate in the House of Commons (click HERE)
March 16, 1981, Debate in the House of Commons (click HERE)
March 19, 1981, Debate in the House of Commons (click HERE)
March 19, 1981, Debate in the Senate (click HERE)
March 26, 1981, Debate in the Senate (click HERE)
April 22, 1981, Debate in the House of Commons (click HERE)
April 23, 1981, Debate in the House of Commons (click HERE)
November 20, 1981, Debate in the House of Commons (click HERE)
November 23, 1981, Debate in the House of Commons (click HERE)
November 27, 1981, Debate in the House of Commons (click HERE)
March 23, 1982, Debate in the House of Lords (UK) (click HERE)
Report of the Royal Commission on Bilingualism and Biculturalism (1967-1970) (HERE)
October 10, 1978: Report Recommendation on Bill C-60, p. 9 (HERE)
The Preamble and the Aims of the Federation
[…] Further, although we recognize that the concept of multiculturalism is implicitly covered by the phrase “equal respect for the many origins, creeds and cultures…that help shape Canada,” we urge that the word “multiculturalism” should also be included.
October 14, 1980, Debate in the House of Commons (click HERE)
October 16, 1980, Debate in the House of Commons (click HERE)
November 19, 1980, Mr. de Jong, Mr. Maldoff, Mr. Levesque, Mr. Bloom, 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. 8, p. 41 (click HERE)
Mr. de Jong: Thank you. I noticed in your presentation that you did not really go into the area of other minority groups. I come from a Dutch background. Saskatchewan has the distinction of being, I think, the only province where the majority of its citizens come from neither of the two founding groups.
Do you feel that the constitutional resolution that is before us adequately deals with other minority groups in Canada, or do you think some mention should have been made of them?
Mr. Maldoff: The question is an excellent one. In coming before this Committee today, our intention has been primarily to deal with those matters which were presented in the resolution which is now before this Committee.
Certainly, inasmuch as the resolution deals specifically with the question of fundamental rights, that is a significant move in favour of all minority groups throughout Canada, and certainly the experience in the United States has indicated that the constitutional guarantee of civil liberties is a very important factor for the preservation of the cultures, vitality of various different communities within the United States society.
The Charter of Rights, as we have mentioned, certainly needs serious consideration as to many of the points, particularly the way they are outlined and many rights should be added, as we have pointed out in our brief.
However, provisions of that nature, with improvement, would do a great deal to respond to the concerns to which you refer.
The Joint Chairman (Mr. Joyal): Mr. Levesque.
Mr. Levesque: Just a brief comment, Mr. Chairman, to say that we have not examined in detail the measures proposed for other minority groups. But there is no doubt in my mind that if official language minorities cannot have their rights enshrined
in the constitution, there is little hope that any other minority groups can manage to get their positions improved.
The Joint Chairman (Mr. Joyal): Mr. de Jong.
Mr. de Jong: Yes, perhaps sort of a general statement at the beginning of the resolution. I find on one level what is sort of lacking in it all is a sense of poetry, is a vision of some direction of what this country is about. it would seem to me that it is in there that you ought to talk about the nature of the country, of this country and the aboriginal people, the founding races and all the people that have come since in the type of mixture in the uniqueness that constitutes Canada and what I find missing over-all is that it racks sole. It is a very dry legal document and there is nothing that would stir up people to a vision and to a future of what this country is about.
Surely it is in that area that we should also discuss then our composition of this country and the various people, the various ethnic groups that have made some very substantial contributions to our development.
Have you found in your experience since the resolution has been introduced in the House that the unilateral action has rekindled any of the animosities between the angle and the French either in Quebec or in Ontario.
Mr. Lévesque: Mr. Chairman, we in Ontario are used to having problems in getting our rights, independently of what the federal or provincial governments decide to do. Most of the time, it just brings grist to the mill of those who seize any pretext to claim that francophones are trying to get more than their rights or that they want to make Ontario a unilingual French-speaking province.
So this is just an excuse which these people use, whether it be the constitution or our attempt to get a French-language class or school in a region where we have the right to French-language education.
Rather than wondering whether there is more or less animosity between anglophones and francophones, we should recognize the principle that francophones have certain rights which should be enshrined in the constitution.
The Joint Chairman (Mr. Joyal): Mr. Bloom.
Mr. Bloom: Mr. de Jong, I think an answer to your question, the fact I believe that the two groups representing the two minority groups to which you refer are here, present today with a joint brief and are able to agree with many of the fundamental principles that are to be included in a charter in the constitution I think that perhaps answers your question better than anything else we could say.
November 20, 1980, Mr. Jan Kaszuba, Mr. Jan Federorowicz, Mr. Marek Malichi, Mr. Epp, Mr. Nystrom, Senator Haidasz, 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. 9, p. 102 (click HERE)
Mr. Jan Kaszuba (President. Canadian Polish Congress): Mr. Chairman, ladies and gentlemen, I would like to introduce myself. I am Jam Kaszuba of the Canadian Polish Congress; on my left is Mr. Marek Malicki, who is the Vice-President of the Canadian Polish Congress, he practices law in Mississauga;
on my right hand is Mr. Jan Fedorowicz. He is a Professor of History at the University of Western Ontario.
Maybe in a few words I would like to tell about the Canadian Polish Congress. Canadian Polish Congress is an umbrella organization spread from Halifax to Vancouver representing over 200 organizations comprising social, veteran, cultural. professional, youths, scouts and many other groups of different interests, but united in their desire to preserve their Polish heritage and proud to be a vibrant and colourful part of the Canadian mosaic.
In the last few weeks we Canadians have devoted quite a bit of time and energy discussing the problem of national unity. We all agree that the Canadian national unity is of utmost importance to our own well being and without it, as a nation, we would be without a future. We all over agree that unity must be based on equality for all peoples of Canada.
I would like to quote the Right Honourable Prime Minister of Canada, Pierre Elliott Trudeau who, on October 8, 1971 announced the implementation of policy of multiculturalism within the bilingual framework. He stated that although there are two official languages. there is no official culture, nor does any ethnic group take precedence over any other, no citizen or group of citizens is other than Canadian and all should be treated fairly. Then he added that the government will support and encourage the various cultures and ethnic groups that give structure and vitality to our society, they will be encouraged to share their cultural expression and values with other Canadians and so contribute to the richer life for all of us.
He made one condition that these ethnic groups must have, as he expressed it, a collective will to exist.
Ladies and gentlemen, I can assure you the Poles in Canada, the PoIish-Canadian cultural community has the will to exist.
This pronounced multicultural policy has been supported by all the major political parties of Canada both in provinces and federally. We must say and I believe that the multicultures is a way of life in Canada. I mentioned all these facts because we are coming to the heart of today’s problem. the Canadian constitution. In the Polish Canadian Congress we take this position: we are, as a group, for the patriation of the constitution, we are for the entrenchment of the Bill of Rights in the constitution, of course, with suitable changes in the proposed text, but we are also in agreement that we must have an entrenchment of the multiculturalism in the Canadian constitution. We consider this a must. Thank you.
Mr. Jan Federorowicz (Canadian Polish Congress): […] In the brief we say that the constitution should clearly state in its preamble that Canada is a country which has been created out of ethnic culture and linguistic diversity. It should affirm the right of every group. not merely people of French or British origin, to preserve and cultivate the various languages and cultures within the broader Canadian context. We go on to suggest that this is not a process of constitutional reform that we want to undergo very often. It is painful at the moment, it has been going on for 50 years, let us get it done and let us get it done right.
On the other hand, if continuing immigration, particularly from non-French or non-English speaking parts of the world, decisively changes the ethnic composition of this country, as indeed it has been doing since the last World War, then a document which singles out the so-called “founding races” for special mention or special privilege, because of historical accident will become either irrelevant or, what is worse, perhaps racist.
I am not even sure what a founding race means. The first captain of the first English ship to come to Canadian shores was Giovanni Caboto. Does that mean that the Italians are a founding race in Canada; I am not sure.
The specific recommendations of the Task Force on Canadian Unity suggested that the preamble to the Constitution recognize the historical partnership between English and French speaking Canadians and the distinctiveness of Quebec. Inasmuch as this would ignore the various other partnerships which bind together this country. singling out only one in particular, that could be taken a an insult to Canada’s smaller ethnic groups, whose partnership in this country is of legally equivalent validity. Furthermore why should the obvious distinctiveness of Quebec alone merit recognition in the constitution, why not the Gaelic distinctiveness of Nova Scotia or the Ukrainian distinctiveness of Manitoba. Either all distinct regions down to Toronto’s “little Italy” are singled out or none are. So I think it is important that that principle is maintained.
The same recommendation of the task force suggests that the constitution recognize the special place of the so-called native peoples of Canada. Well. I am a native people of Canada. I was born 30 miles down the road from Ottawa in Kemptville and I am just as much a native as anyone else. A constitution cannot compromise itself by the imprecise use of language. Let us be clear what a native person is. If you mean Amerindians, that is another matter.
In any case, it hardly conforms to any normal principle of justice to make status in a country dependent on the historical order in which ethnic groups immigrated into a country. So, I think that is another point we want to make, which we want to stress.
Finally, the task force originally recommended that in the preamble the richness of the contribution of Canada’s other cultural groups be recognized. Well, we find this formula patronizing and offensive. We do not make a contribution to this country, we are a part of this country. We were born in this country, we are citizens of this country, we do not make a contribution to a process controlled by someone else. So, we wonder if the matter should be specified in this way.
The point of these remarks, and I realize that since this original brief was submitted other matters have come before the agenda. We now have the resolutions before us that we are discussing. But the point that we are trying to make is that we reject any notice of special status. That is the first point. All Canadians are equal, all Canadians should have the same status in law.
Our problem with the proposed resolutions is that certain phrases seem on the face of it to be discriminatory.
Perhaps in the discussion later on I can be corrected on this. But Section 23 of the resolutions states that citizens of Canada whose first language learned and still understood is that of the English of French linguistic minority population of a province, etcetera, etcetera, will have the right to choose the language of their chi1dren’s instruction.
Well, as it appears now, as a citizen of Canada, I would have at least one less right than those whose mother tongue is either English of French. My mother tongue happens to be Polish. I did not speak any other language except Polish until I was about four or five years old, though I was born here, as I say.
So, according to this proposal, I would not have the right to choose the language of education of my children. whereas, other people might.
Well, I refuse to be made a second class citizen and I think most people of the so-called ethnic communities probably feel the same way.
Perhaps the point can be made more clearly if we compare what would happen to a Dutch immigrant and a Belgian immigrant to this country. A Belgian, having been born in a country where the official language is French, would have the right to choose; a Dutch immigrant would not
Canada, furthermore. has signed the Universal Declaration of Human Rights and committed itself among other things to Article 26(3). I will read it to you. It says that
Parents have a prior right to choose the kind of education that shall be given to their children.
There are parts of this resolution now before Parliament which would deny that right, or at least. if not deny it, would regulate it. Are these rights then to be curtailed, are we going back on the agreement that we signed in the Declaration of Human Rights?
I imagine that the problems that we are confronting are the problems of drafting the correct wording of all these resolutions, but I draw attention to them because, after all, the constitution to some extent is engraved in stone and we are trying to get it right and get it right for all time.
Further than the specifics of any of the proposals, we are concerned about a broader issue and that is the question of multiculturalism. Canada is, after all, a multicultural country. The bilingual and bicultural commission in the sixties and Book 4 affirmed this in 1971, the Prime Minister tabled it as the official policy of the government in the House of Commons. All parties accepted it, in 1972 a Secretary of State for Multiculturalism was appointed, a Canadian consultative council on multiculturalism was appointed in 1973. We have had grants, we have conferences, we have had all kinds of activities and there is no mention of any of this in the resolutions before the Parliament.
One wonders if all of this activity has been anything more than just window dressing. I do not know I would hope that it is not, I would hope that it is a genuine commitment to the policy of multiculturalism and yet from a reading of the resolutions as they are presented, multiculturalism and, indeed, the word culture is not mentioned.
The question of language is a key. We know about the problems of language, we have had these problems in Canada a long, long time. I suspect that the problems of language are even more complicated than we think.
I refer again to our brief. The question of third languages also needs to be reviewed. The Government of Canada says that it accepts the multicultural nature of this country and yet it ignores the issue of language, without which culture per se is meaningless. If the question of language is so vital to a group as large as the Quebecois, how much more crucial must it be to the smaller and widely dispersed ethnic communities who stand to lose any trace of their cultural heritage once their language disappears. Existing multicultural policies have fostered a stereo typical view of ethnic culture as consisting of costumes, dances and exotic foods but by ignoring language, they have cut these cultures off from their roots, rendering them into irrelevant, archaic museum pieces and not living organisms.
If the government sincerely believes in multiculturalism, then it must maximize opportunities for third language education within the normal educational curriculum. Anything short
of this is simply dishonest. While we all accept the practical rationale for official bilingualism, and nobody is challenging that, nobody is quarrelling with that, or Certainly we are not, we reject utterly the notion that Canada is a bilingual country in the everyday practices of a substantial portion of its population.
Well, the point is that we are simply afraid that all this sound and fury is, to some extent, meant to pacify us, to keep us quiet, but does not represent and kind of commitment and when these resolutions came out, that fear was, shall we say. exacerbated. One hopes that ‘the government does not see everything in this country in terms of the English-French dichotomy because there are almost one-third of the population of this country that are in some sense not included in that dichotomy.
I sympathize personally very deeply with the cultural struggle of the Quebecois. I sympathize with it because I experience it myself in my own little cultural struggle against the mass culture of the lowest common denominator. That is why all of Canada’s ethnic groups, including I suspect the Scots, Welsh, Irish and English, should be allies in this struggle.
We should not allow one group to affirm its own culture at the expense of anothers. It is simply unjust and undemocratic to do so. Regardless of when our ancestors came here or how many or how few of us there are, we all have equal rights, or should have, to our cultural expression.
As I said, the resolutions which I have before me do not mention multiculturalism. They do not mention the word. They drily and mechanically plod through the issue of English and French language rights, guaranteeing those, but for a substantial part of this country, neither English or French are in fact their mother tongues. The language rights of those peoples are utterly ignored. There is in fact no guarantee of the right of these groups to provide education for their children in their own language and culture.
Would, for example, third language schools be legal under these present provisions? I am not sure that they would. All we know is that according to Section 22 of those provisions, legal or customary rights hitherto acquired are affirmed. Well, what are the legal and customary rights as regard third languages. Is it very clear, is there a clear statement on that? We would have to sift through, I imagine, quite a number of law books to find out.
Furthermore, if we look at Section 22 closely, it affirms the existing rights but it does not envisage any extension of those rights in the future should that in fact prove to be necessary or desirable. Well, I am not happy with that formulation and I suspect that not just in the Polish community but in other ethnic so-called communities in this country there is a similar amount of unhappiness. The constitution of a country should not be an ad hoc arrangement of temporary compromises or political expedients. It has to stand the test of time and it has to be an expression not only of a particular historical situation,
which can change. In the 18th century Canada was a French country and in the 19th Century it was British North America and in the 20th century it is something else entirely. Do we know what it is going to be in the 21st Century or a 1000 years from now? No, constitution has to be an expression of principle and in a democratic state the law must apply to all people equally. That is a principle.
Well, one principle that the Canadian government has accepted because it is part of the International Bill of Human Rights of the United Nations is that in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language. Now, that is in the United Nations’ Bill of Rights. We have signed that document, we accepted that document yet it does not appear in our constitutional proposals. That I think is a very serious oversight.
At best, we have a general principle enunciated in Section 15(1) which says that everyone has the right to equality before the law. for the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. That is all it says. It does not say anything about cultural rights, it does not say anything about guarantees if I want to educate my children in a third language.
So if the constitution is to be equal, then, for all Canadians, not just English or French Canadians, I would like the new constitution to recognize that I, too, am a Canadian, that my language, though unofficial, is a Canadian language; that my culture is a Canadian culture; that I have as much right to pursue and develop my cultural and linguistic interests as any other Canadian, and that my government, which I support with my taxes, will help me in this endeavour.
Either Canada is a multicultural country, and this fact is recognized not only in the constitution of this country but in the practice of the government, or we should stop beating around the bush and admit that there is only room for two chartered ethnic groups in this country and that it is official policy, by carrot and stick, to induce all other groups to assimilate into one of these two. If the latter case turns out to be the real intention of all of this, then that is a policy which I totally reject and I suspect it is a policy which you would have trouble convincing a third of this nation to accept.
Mr. Marek Malichi (Canadian Polish Congress): I am just going to make a few additional comments to the statements of my predecessors and I may make a brief comment as a preamble and that is in the present arrangement under the British North America Act the fact that none of the basic freedoms are specified I believe would make it a fair assumption that these freedoms exist unless they are abrogated by law or by Parliament. By specifically naming these particular
freedoms there is always the fear that those that are not named are not specifically included or can be excluded. This makes the point that my predecessor mentioned that in Section 15(1) there is no reference to cultural preservation. Now. this is not just a theoretical problem, it is a very practical problem.
When the War Measures Act was promulgated in 1917 there was a period of time during which persons of central European origin were prohibited from the use of their languages except in the home and in their churches. It was not permitted to use the language on the streets. That can still occur theoretically under the present constitution unless there is the preservation of cultural rights in the constitution. Preservation of cultural rights of course presupposes the right to use a language other than English and French. As it was stated before, we wholeheartedly support the concept of two official languages; the country could not exist unless that were the case. I think the resolution specifies in paragraphs 14 and in paragraphs 17 to 20 that these official languages are to be used in Parliament, in the legislatures and in the courts and that is as it should be.
Nevertheless, Section 16(2) makes a reference which really leaves the constitution subject to change at the whim of the legislature and the paragraph simply says:
(2) Nothing in this Charter limits the authority of Parliament or a legislature to extend the status or use of English and French or either of those languages.
Well, either we know now where those languages will be official or we do not know. We are really leaving the door open for an amendment to the constitution defacto by any provincial legislature or the Government of Canada. As an example, if we have to use English or French in the courts, say, of the province of Ontario, what is to prevent the Province of Ontario from legislating that all contracts shall be in the English or French language. Now, contracts could mean written contract. It could mean oral contracts. It could mean buying milk at the local Becker’s Store. A contract that is not in the English or French language would be invalid, would not be enforceable in court. is that not some manner of preventing persons from the use of their language, from infringing on their cultural right? This is one example of many that can be presented.
If there is an intention in the constitution to indicate that the English or French languages are to be used, then let us specify in which cases they are to be used and not leave it open-ended for the legislatures to decide.
The constitution should be a terse short document. The constitution should not be subject to interpretation, to variation. Section 16(2) begs variation, begs the provinces to determine for themselves what is appropriate in the use of the English or French languages.
Under the British North America Act education has been within the competence of the provinces. With the proposition that Section 23 be included in the constitution there is to a certain extent infringement by the federal government in the area of education, albeit not great but it is a foot in the door. That, therefore, leaves room for discrimination in the same manner as my friend indicated, because the constitution is a document that theoretically is not subject to change except at very considerable effort and at very infrequent intervals. The provision of the English or French linguistic minorities having their language rights entrenched makes it difficult, if not impossible, for provincial legislatures to provide for language instruction in third languages because it may be contrary to the principles on which we are governed, the constitution. Therefore, that is why we are concerned with that particular area, because it is no longer subject to change in a provincial legislature, it is part of the constitution, whereas in the Toronto area we are now in numerous programs where third languages are taught in the public and separate school systems. This may be unconstitutional in the future. It may be unconstitutional, not subject to variation. That is why we are concerned. This is the Federal Government speaking, it is enshrined in the constitution that affects us all.
I might make a brief reference to something quite apart from language rights and this is the reference to the rights of citizens before the law. It is said that the law is like a knife, it never hurts the person who wields it. if we look at certain paragraphs, in particular Section 8, 9 and 11 (b), there is reference to the words “in accordance with procedures established by law”. As an example, anyone charged with an offence has the right not to be denied reasonable bail except on grounds and in accordance with procedures established by law. Why are the words “in accordance with procedures established by law” used? That law is subject to change at any time by the Federal Government. Theoretically, the constitution can be changed at any time. A criminal code can be amended. By the same token paragraph 8, which states “everyone has the right not to be subjected to search or seizure except on grounds and in accordance with procedures established by law”. Is it sufficient to put a period after the word “grounds”? and simply say “everyone has the right not to be subject to arbitrary search and seizure”. Procedures in the law vary, they vary from year to year and they vary from one government to another government.
The constitution is a document that defines once and for all the rights of citizens and the inclusion of those words makes the constitution subject to change and subject to interpretation.
There is one further point that I perhaps may make in connection with the question of language. Section 23 would appear to permit the government to support a French minority language group in another province other than Quebec or an English minority language group in the province of Quebec if there is a sufficient amount of persons there, whether or not that group is willing to contribute financially to the preservation
of the language in that province or in that area, in other words, the government is prepared, on the basis of that section of the resolution, to artificially support a language in an area where the people themselves are not willing to contribute to the preservation of the language simply because of the number of people there. There are no guarantees that the government is prepared to support the preservation of, for instance, Ukrainian schools in Manitoba, Polish schools in Toronto, if there is a sufficient language group, even if that group is prepared to contribute financially, that is an inequity.
Why am I, of Polish origin but not born in Poland, I was born in England and came here when I was three, why am I and my children not permitted to get government support to study the Polish language, and my children speak three languages, or the Spanish language or any other language, whereas the group of francophones in Manitoba, who may not be prepared to pay for French language schools, have an inherent right to ask the government for support based on those sections.
Mr. Epp: Thank you, gentlemen. I would like to get into the matter of what I thought was the central point in your presentation. namely the inclusion, either in the preamble or in some suitable section of the constitution, enshrining the concept of multiculturalism. You are correct when you say that it is official government policy of every government of Canada that has had those responsibilities, every political party on the national level has endorsed the concept of multiculturalism. and I use the word “concept” for good reason.
I would like to get your reaction in this way: when the changes to the Immigration Bill were made an amendment was moved by the Opposition to include multiculturalism in the Immigration Act, namely that the purpose of it and there is now a Statement of Purpose in that act, one of the purposes of that act is to preserve the bicultural character of the nation, that was endorsed by all parties. We also wanted to include the words “multicultural nature of the country”, in view of the fact of immigration changing the numerical makeup of the country or the potential changes it can make to the numerical makeup.
Could I have your view in terms of inclusion of the multicultural reality in Canada in legislation, and I have given you one example, namely the Immigration Act.
Professor Federorowicz: I am not sure that I understood your question entirely because you said first “bicultural” and then you said “multicultural”.
Mr. Epp: The preamble, the statement of purpose in the Immigration Act now includes “bicultural” namely that it is the purpose of the Immigration Department to foster the bicultural character of Canada.
Professor Federorowicz: And presumably that means that anyone who is not English or French cannot come into the country.
Mr. Epp: No, that is not what I am saying. What I am saying is that it was not accepted as official policy in legislation that the word “multicultural” should also be included in a statute of Canada.
Professor Federorowicz: Well, I believe that it should be included in a statute of Canada, as I suggested the government has on numerous occasions claimed to be introducing this kind of policy, multicultural policy, a recognition of the ethnic diversity and I do not see why it should not come into the statutes in a practical way. Why should our immigration policy want to foster one kind of an ethnic distribution in this country as opposed to another? That sounds to me a little bit racist. Why not just say: look, there are always going to be a few problems, there will be refugees from one country or another, this will always upset things so there are moments when we cannot predict what is going to happen.
So I am very much against the notion of bicultural as opposed to multicultural, I think this is a multicultural country and either we accept that fact and we behave accordingly in our legislation and in our government practice or we stop talking about it. Let us just be honest, put our cards on the table and say: look, the purpose of 70 per cent of the population is to assimilate the other 30 per cent. Let us know where we stand on that. So my feeling is: one or the other.
Mr. Epp: Could I ask you in terms of amendments to the proposed resolution, have you had any opportunity where that amendment, if the committee should be willing to accept the proposal that you make tonight, as to where you would see it included to entrench the reality of multiculturalism?
Mr. Malichi: Well, perhaps I could make one or two brief comments on that. I think Section 15(1), which deals with the right to equality before the law and equal protection of the law without discrimination, that really deals, I suppose. more in the sense of discrimination rather than preservation of cultural rights, but it appears to be the only paragraph here that remotely comes to the idea. Ethnic origin simply means that: Origin; it does not mean the present; it means where we came from but not what we are now. There is no reference to the preservation of language, there is no question of the use of other languages other than say, in the courts or in the Parliament.
We were quite disconcerted to note in the resolution that there is no preamble. Until quite recently we had been under the impression some form of preamble, albeit very short and terse, would be there and it has been suggested that the preamble may contain a statement as to the multicultural character of Canada. The preamble, of course, is part of the statute. It aids in interpreting the statute subsequently and an acknowledgement of the multicultural concept of Canada would then of course leave the other sections to be interpreted in that light.
In the absence of a preamble, and in View of the fact that Section 51 is more a non discrimination clause rather than a preservation of culture clause, it would either be in the form of preamble or inclusion of a subsection to Section 15, I would imagine, dealing with the preservation of cultural rights, or linguistic rights, other than, say, the use in the courts or in Parliament.
Mr. Epp: In view of your origins in central Europe and what has happened to private property in Poland, the Canadian Bill of Rights of 1960, the so-called Diefenbaker Bill of Rights, included property rights. We do not find any property rights in this proposed resolution What is your view on inclusion of those rights in a charter?
Professor Federorowicz: Well, I think the omission of property rights is probably an oversight of the drafters and I would hope that that would be rectified. There are other oversights of the drafters that we have noticed in our hurried way.
For example, this business of equal protection of the law without discrimination makes no statement about something
like hate propaganda or ethnic slurs. That is another aspect of things which is not mentioned here, which is not in any way dealt with. It is possible in the law as it stands right now for people to produce advertising which portrays an ethnic group in an unfavourable light and there is no way of dealing with that. I think people have a right not only to property but to their good name, to their reputation. There is nothing that would protect that.
I noted that the Canadian Jewish Congress a couple of days ago suggested that hate propaganda also be excluded, that it is inconsistent with the democratic process and a specific recommendation to that effect be included, and we fully support that. We would extend it to say any kind of racial slurs or notions like that.
So it is not just property. A person’s self-esteem, a person’s self image can be just as important as property, but I quite agree that property probably should be in here.
Mr. Malichi: Can I make a very brief addition to that? Again before the resolution has been presented it is assumed that property rights exist simply because they have never been abrogated by legislation. Again, if we are going to name what rights we have, again, that is just a general principle there that other things are included. It is an exclusive definition of our rights, an exclusion of property rights appears to imply those rights do not exist.
Perhaps carrying the second point also a step further, paragraph 25 of the resolution that any law that is inconsistent with the provisions of the charter is inoperative does not take into consideration-that most of us are not as affected by laws as we are by administrative tribunals, regulations and by decisions of persons other than judges and that paragraph 25 should apply also to decisions of administrative tribunals and to regulations under the various statutes.
Mr. Federorowicz: My position is that inasmuch as the Government of Canada signed treaties with, shall we say, for the sake of convenience at the moment, the native people, though I think we need a better expression than that, then the Government of Canada is in duty bound to adhere to those treaties. We can make a statement to that effect.
But a statement to the effect that the treaties are recognized does not single out those people for any special status, and that is the distinction I am drawing: yes, by all means, we recognize the treaties we have signed; no, the native peoples are not a special status group in this country, There are no special status groups in this country.
But I am absolutely in favour of recognizing the treaties that we have signed with them, and honouring those treaties to the last letter absolutely.
Mr. Nystrom: I would like to switch to Section 23.
You said earlier, I think, that some of the wording of Section 23, the linguistic rights, if I remember correctly, you said it mainly espoused other languages illegal or unconstitutional. With your background as a lawyer, I would like you to elaborate on what you mean by that, and if indeed that is the case, what kind of changes would you perhaps make to Section 23 where they would not indeed be unconstitutional. Why would it in your opinion be unconstitutional?
Mr. Malichi: Quite apart from the fact of unconstitutionality. the inclusion of that would disincline provincial legislatures to go the route of either funding or encouraging schools to be taught in other languages, simply because the constitution, the basis of the federation, says that English and French shall be taught in schools with the caveat that English and French may be taught in provinces where they are not the primary languages if there is a substantial minority group. That, in itself. is already a reason for provincial legislatures to say: “The constitution of Canada, which is the document to which we all adhere, prevents us from either funding or supporting your schools”.
Perhaps the example that my friend gave before might suffice. If I were to move to Quebec and wished to have my children learn the English language in Quebec, they would not be permitted to learn English, just by the fact that I was brought up in an English-speaking province, simply because I am not of the English or French linguistic minority; my original mother tongue was not English; because I spoke Polish before I spoke English as well. Therefore, a person of English origin, who resided in Ontario and moved to Quebec can have his children taught in English. I was brought up in Ontario, I learned English. studied in English and then I take my children to Quebec and must then have them learn French and not English. That situation would put me in a different category from that of any person of English origin: I would not be as good as that person; I am a citizen, but my citizenship would have strings attached. That is why I think the inherent equality which people are to derive from this constitution would not exist if this section were passed that way.
Of course, the courts can interpret paragraphs, but it would be stretching it a long way for a court possibly to interpret it favourably.
This is not like the United States where the courts can strike down statutes because of the constitution. in this particular case, I think, the language is so obvious as to what is intended that the courts could never make that decision.
Mr. Nystrom: Certainly, you are right so far as establishing two types of citizens is concerned. You take the situation in Quebec where a person immigrating and becoming a citizen from an an anglophone country, be it the United States. Australia or whatever, the way it reads, they would have freedom of choice, but a person immigrating from Quebec or a francophone country, or Italy, or Sweden, or Poland would not have that same right. The contrary is true of the other parts of
the country, a person emigrating from a francophone country, if numbers warrant, would have freedom of choice.
I also wanted to ask the professor another question. He used a word tonight which is very tough and a very sweeping word.
He used the word “racist” a few times. You said that something was a little bit “racist” when you were referring to some of the legislation of the country. Were you thinking of some sections in this resolution when you were using that word, and is there anything in that resolution which can be constructed as being racist?
Mr. Federorowicz: Not specifically in the resolution, but in the spirit of only two founding races or two founding cultures, which somehow pervades this resolution, we might get that notion.
I would not accuse anybody in this government or those who are drafting this legislation of setting out deliberately of make racial distinctions or categories.
But the feeling is, somehow. that there are only two founding races and that there only two languages and that there are only two cultures, because none other is mentioned. I am very worried about that. it strikes me that a constitution that limits itself in that way could, in fact, become racist with the passage of time, if for example the ethnic composition of this country changed.
How do we know what is going to be happening here 500 years or 1000 years from now? I wonder if this constitution is going to last that long. I hope it does, but I dread to think of having to go through all of this again.
Mr. Nystrom: […] The so-called Alberta formula for secondary language education, I think those of us who come from Western Canada are familiar with the Alberta formula, namely the second language
of education can be any language that the people so choose. That is also the thrust of purport of your argument today. Are you saying by suggesting that it be included in the constitution, that we are facing now a unilateral action with this proposed resolution, and that the same infringement does not exist in your proposal?
Mr. Malichi: Perhaps we can eliminate altogether any reference to education rights for linquistic minorities altogether and therefore assume that such rights exist inherently, rather than including the rights of other ethnic groups to teach in their language, simply delete any reference to Section 23(1) and (2). I think it would naturally flow therefore that other languages could be taught in the provinces, and the provinces, within their jurisdiction would have the competetence to decide whether there will be schools teaching a third language, or whether the French minority will have language instruction; it is obvious that French and English will be the official languages, and so it would be reasonable for provinces to encourage French language education and to encourage English language education, because there is that right in government and Parliament and, of course, courts to use those languages,
So that would flow, but there would not be that overt discrimination which arises by the inclusion of Section 23.
Senator Haidasz: […] However, I would like to follow on the questions of Mr. Epp, and I would like to ask Professor Fedorowicz whether Section 22 can be changed in any way to suit the Canadian Polish Congress because it reads now:
22. Nothing in Sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language.
I am sure Professor Fedorowicz knows one of the highlights of the multiculturalism policy is a heritage enrichment program which does allow federal funds to be expended for the teaching of nonofficial languages.
So this is a right or privilege that has been acquired and enjoyed by many ethnocultural organizations that wish to take advantage of that provision in the multiculturalism program.
Mr. Federorowicz: One obvious way of changing it would he to insert the words “and culture” after “language” in that provision, so we know that we are talking about something more than just linguistic rights.
I am a little hesitant about the present formulation of it. I cannot after having only 24 hours to prepare. give you a nailed-down type of alternative wording of this.
But I am a little hesitant about “any legal or customary right or privilege”. I am aware of the various multiculturalism programs which exist, and I hope they would continue to exist and even be expanded; but I am not at all sure that any legal or customary right or privilege is an adequate expression of those programs that do exist.
I would like to have that nailed down a little more explicitly. In any case, not just a language, but culture be mentioned here.
Senator Haidasz: If I may, Mr. Chairman, ask Mr. Kaszuba, the President of the Canadian Polish Congress whether you would insist that a preamble be part of this constitution act, or whether the charter of rights amended in some way, would be sufficient to satisfy the Canadian Polish Congress that the federal government is, indeed. committed to multiculturalism; after all, successive ministers of state for multiculturalism have stated that policy is a permanent policy of the Government of Canada; and it has provided all the machinery by which such policy can be implemented.
Mr. Kaszuba: I am of the opinion that the preamble would be the proper place to insert it, because it describes the nature of a nation. what it consists of.
In addition to the two majority groups, the English and French speaking people, there is a third group which speaks a variety of different languages. The stressing of multiculturalism in the preamble would underline the character of the Canadian nation.
Mr. Malichi: Perhaps I can make some small addition to that. Although we acknowledge the existence of the English and French speaking groups, there should be no reference in the preamble to English or French speaking or other groups. It sets apart the other groups as a form of second class citizens. As a Canadian citizen, there is no distinction between someone who is English speaking, or of English origin or of French or other origin, It should simply state that Canada is a multicultural nation, or endorse the policy of multiculturalism or some such form, without distinguishing between the English speaking, French speaking or others.
Senator Haidasz: My final question. To make it clear what the position of the Canadian Polish Congress is on the special status of founding races, do you categorically reject a special status for some province? Do you categorically reject, also, the concept of founding races?
Mr. Federorowicz: Yes. Why specify any one province above any other. Why specify any particular race above any other. The order in which we have arrived in this country is a product of a lot of different things, historical accident more than anything else, and I am not sure that a constitution which deals with questions of justice should specify founding races or charter races, or charter linguistic groups or anything like that. I think we should all be treated equally as Canadians, regardless of whether our ancestors came here 80,000 years ago, or three or four years ago.
Senator Haidasz: In your presentation, Professor Fedorowicz, you mentioned that your mother tongue was Polish, and that something in this proposal of a constitution act makes you fell like a second class citizen. You were born in Canada and you have reached the status of a professor of history at one of our universities.
Do you really feel that you are a second class citizen?
Mr. Federorowicz: I do not feel it. But that is what potentially could happen if Section 23(1) were applied rigorously because I would not have the same choice in various parts of the country regarding my children’s education as other people would have, other Canadians. In that one instance my rights would be different from somebody e1se’s rights. I would reject it. I do not think that is just.
Senator Haidasz: Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you. Mr. Nystrom.
Mr. Nystrom: I also want to thank the association for appearing here tonight and making some important points about the multicultural background of the country. As you can see from my name, some of my ancestral roots are from a different group, although half of my family do come originally from the British Isles. I am a bit of a mongrel type of fellow.
But I think it is very important to enshrine in our constitution some reference to our multiculturalism and it has been the position of our party that that should be the case.
I fully understand some of the hesitation that is being felt, particularly in the Prairies by some of the people who came here from eastern Europe. I speak, historically, of my province, which is probably the only province in the country where the Ku Klux Klan had a major impact back in the 1920s. They were very well organized in those days, and their targets were basically people of the Catholic religion and the newly arrived immigrants from eastern European countries, and I speak particularly of the Ukrainian people of my province and also others. I fully understand some of the feelings of people from countries of this sort and the feeling that we should have our rights firmly enshrined in the constitution and protected by law of the constitution.
A number of things which were said tonight, however. bother me a little in terms of whether or not we are doing as Parliamentarians the right thing in this resolution, because you are raising some points which others have not raised, though I
think that is very good, and I would like to ask you a few questions for the purposes of clarification.
You refer to Section 24 and talked about native rights. I think it was Professor Fedorowicz who said that he considers himself one of the native people of this country. The wording, here, perhaps should be changed to Indian peoples, Inuit peoples, perhaps the Métis people of this country.
I would like to ask you whether or not you are in favour of enshrining rights for the original peoples of this country which are, what you might call the prefounding people, or if you do not want to use that type of language, the Indian people, or the Inuit people or the native people?
Mr. Malichi: May I make a brief answer to that? First if we took out the last two lines of Section 24 and end at the word “Canada”, would the rights of those native peoples not be preserved?
Mr. Nystrom: The native people argue that their rights are not preserved because they signed treaties with the Crown, many, many years ago.
Mr. Malichi: When you refer to the native people, are you not distinguishing them as a special group? Can it not be implied by virtue of being mentioned that they have rights inherently greater than other groups, that they are Canadian citizens with greater qualities than others have?
November 27, 1980, Mr. John Nowosad, Professor Lupul, Mr. Epp, Mr. Mackasey, Mr. Lewycky, Mr. Hnatyshyn, Mr. Orest Rudzik, 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. 14, p. 54 (click HERE)
Mr. John Nowosad (President, The Ukrainian Canadian Committee): […] We are opposed to the present wording of Section 1 of the Canadian Charter of Rights and Freedoms, which:
guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.
In our view, this clause allows too much leeway in allowing the suspension of the charter:
subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.
The internment of Ukrainian Canadians during World War I was carried out by a government which apparently felt that it was acting in a manner consistent with the principles generally accepted by Canadian society at that time. This unjust and arbitrary treatment of Canadian citizens was repeated again during World War II in the case of the Japanese Canadians. Even the most fundamental principles of our justice system— the right of habeas corpus and the right to be presumed innocent until proven guilty—were arbitrarily suspended in the internment of Canadians who were allegedly dangerous enemy aliens. It is our view that the limitations clause in Section 1 of the Charter is so broad in its application that it would do nothing to prevent a repetition of this kind of systematic abuse of those fundamental rights which the proposed Constitution is supposed to protect, and we would therefore recommend that Section 1 of the Canadian Charter of Rights and Freedoms be deleted.
We are also most concerned that the proposed constitution does not explicitly recognize that Canada is a country which is diverse culturally and linguistically. Since October 1971, a policy supported by all parties in Parliament has defined Canada’s identity as multiculturalism within a bilingual framework. In the proposed constitution there is much attention,
as there should be, to English-French bilingualism. It is, however, one part of a policy with two dimensions, the other being multiculturalism. To us, this slighting of one part of a single policy is a serious deficiency in the proposed Constitution.
As early as 1972 the Special Joint Committee of the Senate and the House of Commons, Chaired by Senator Gildas L. Molgat and the honourable Mark MacGuigan, recommended as follows:
The preamble to the constitution should formally recognize that Canada is a multicultural country (Recommendation 27).
In 1977, in the debate on the immigration bill, an amendment which added “the multicultural nature of Canada” to its “federal and bilingual character” was defeated in the House of Commons, even though the Canadian Consultative Council on Multiculturalism, a body advisory to the Minister of State on Multiculturalism, had specifically recommended a similar amendment—the recognition in the bill of federal bilingual multicultural character of Canada.
In A Time for Action: Toward the Renewal of the Canadian Federation, a document released by the Government of Canada prior to the publication of its constitutional amendment bill in June 1978, we find the following clear statement of the government’s commitment to the enhancement of Canada’s mosaic of cultures in any renewal of the Canadian federation:
For more than a century, people of other ethnic origins have come to Canada and settled beside those of British and French ancestry. A large number of them have joined the English-speaking majority and others the French speaking majority, without in the process losing their individuality.
With the sheer weight of their numbers, it is natural that the French and British cultures occupy a major place in Canada. But there is no question of having only one or two official cultures; Canadian society must promote cultural diversity, clearly and explicitly.
This diversity will only be protected if we ensure that Canadians of all ethnic origins have equal opportunities and full protection against discrimination.
Our French and British traditions have not been weakened by the multicultural character of our society. On the contrary, by good fortune this increasing diversity has helped to reduce the old rivalry between them. They have also been invaluably enriched and revitalized in all fields—from the arts and sciences to economics and politics. Our two principal cultures will in no way be diminished by the determination of new communities to preserve their own cultural heritage.
We must therefore do more to develop and enhance all the elements of the Canadian mosaic. We must also significantly increase exchanges between our cultures, so
that every Canadian has the chance to discover, appreciate and respect the heritage of his fellow citizens.
While the term multiculturalism was not explicitly mentioned in the constitutional amendment bill which followed, the honourable Marc Lalonde, in an address to the Canadian Consultative Council on Multiculturalism on October 27, 1978 declared:
This new constitution will be written for Canadians and it must faithfully reflect the reality of Canada today. Since this country is bilingual and multicultural, the constitution will recognize the fact without ambiguity. I can tell you without hesitation that the government itself has absolutely no objection to inserting the word «multiculturalism» in the text of the constitution.
It is therefore truly disheartening that in the proposed constitution the term multiculturalism is again nowhere to be found.
There are those who would argue that multiculturalism will be placed into the preamble after the constitution is patriated. The provinces, they say, could not agree upon a preamble and so it was because of the provinces and not the federal government that the constitution did not recognize Canada’s cultural diversity. The strength of this argument may be gauged from the fact that the same federal government did not hesitate to ignore the equally divided wishes of the same provinces and unilaterally invaded the well known area of provincial jurisdiction, namely, education, in the matter of English-French minority language education rights. With a preamble now apparently out of reach, I am sorry to say, partial restitution for slighting multiculturalism as the second co-ordinate of a single government policy can be made by adding the following under nondiscrimination rights as Section 15(3): everyone has the right to preserve and develop their cultural and linguistic heritage
The Ukrainian Canadian Committee is truly pleased with Section 16 to Section 22, which refer to English and French as the official languages of Canada with equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. French Canadians in all parts of Canada must be able to speak to the Government of Canada in French if it is to be their government and national unity is to prevail. National unity, on the other hand, can only suffer from the unilateral invasion of the provincial sphere of educational jurisdiction by the federal government on behalf of a single minority in each Canadian province, to us, all cultural and linguistic minorities live or die together. To us, among cultural and linguistic minorities there can only be equals—at least in law.
Thus, if the Government of Canada can invade provincial rights in education on behalf of one minority in Quebec and another in the other provinces, we would submit that it can do the same for other ethnocultural minorities whose linguistic and cultural needs are equally pressing. In places like Edmon-
ton, where I come from, there are classrooms in the public schools in which the languages of instruction, besides English, are Cree, French, German, Hebrew and Ukrainian—classes which are conducted on a bilingual basis. We would submit that if a Canadian constitution is to guarantee minority language rights in provincial educational systems, that guarantee should not be confined to one linguistic combination, but embrace all that are viable through the following modified provision of Section 23(1) of the proposed constitution:
Citizens of Canada shall have their children receive their primary and secondary school instruction in the language of the majority of the population of the province in which they reside and in any other language(s) in accordance with the expressed desire of parents in any area of the province in which the number of children of such citizens is sufficient to warrant the provision out of public funds of minority language educational facilities in that area
The above amendment renders Section 23(2) unnecessary and it should therefore be deleted.
The suggested changes would have three main advantages. In omitting references to first language learned and still understood in the present Section 23(1), all Canadian citizens outside Quebec who wish their children to learn French would have that right without being members of the French linguistic minority population. Under the present clause, while a nonFrench Canadian in Western Canada, for example, could send his children to a French bilingual class, he would not have the right to do so.
In omitting references to the “English … linguistic minority population” in Quebec, the primacy of French in that province is secured, without denying anyone the right to acquire a second or third language of their choice. To us, this is very important, for if anything is clear after two decades of debate and discussion, it is that unilingual English-speaking residents in Quebec must become bilingual. Yet the proposed constitution actually guarantees them the right to remain unilingual English in a province where 80 per cent of the population is of French origin.
The original clause also carries the unfortunate implication that all other ethnocultural minorities are of little consequence in Quebec. While they must certainly learn French because of its primacy, and they should surely know English because they live on what is essentially an English speaking continent, they should also have the right to learn their ancestral language and become trilingual, because they live in a multicultural country which values its cultural and linguistic diversity.
In guaranteeing the possibility of numerous bilingual combinations without endangering English outside Quebec or French inside Quebec, a basic equality of linguistic status, thought not of course of linguistic usage, so essential in a viable, multicultural society, is ensured. Ensured also is a stronger place for the main bilingual combination—English-French—for we are utterly convinced that English-French bilingualism in most
parts of Canada and, almost certainly, in all parts west of the Ottawa valley, can only benefit from the presence of other linguistic dualities which have a living demographic base. What is needed is an amended Section 23(1) which will ensure language rights in education to all groups who are prepared to take bilingual education seriously and who wish to press for opportunities which are all too often arbitrarily denied.
Canada is not, and must never become, what one historian once described it, the “Austro-Hungary of the new world, with its two official peoples and its multitude of permitted ones.” This is from William Kilbourn, “The Making of the Nation”, 1965.
We cannot find words to describe the tragedy of a society in which all individuals are equal but some are more equal than others, all cultures are important but some implicitly carry official status, all languages are valuable, but school instruction in only some is guaranteed, all peoples are permitted but some are more welcome than others.
French Canada, in its struggle for cultural survival and development, has relied heavily on the educational system. So must all other ethnocultural minorities who are seriously interested in their own survival.
The Ukrainian Canadian Committee feels that the school systems must begin to serve the needs of Canada’s Ukrainian community, not just in terms of culture but language as well, but only when the right to a bilingual education is broadly guaranteed will this begin to happen. And the place to begin is in the constitution act, our country’s proposed new constitution.
Finally, we would like to say something about the 1 million French Canadians outside the Province of Quebec who find themselves in our midst. While most are well disposed towards the proposed constitution, many are equally uncomfortable with the linguistic educational provision of Section 23(1). It is exclusive; outside Quebec, only the French are singled out for salvation, as if their survival as a group were alone, threatened.
In these circumstances, they are concerned, very reasonably, not to harvest the bitter and frequently ugly results of disaffection which usually accompany privileged minority status.
Section 23(1), if proceeded with, will not cool the hot coals of bigotry in Western Canada and elsewhere which, it appears to us, are just waiting to be fanned. Should that happen, everyone seriously interested in bilingual education would undoubtedly suffer and all bilingual classrooms will be the ultimate victims.
Mr. Chairman, if Canada is to have a new constitution, we want it to be one with which we, as Canadians of Ukrainian descent, can also identify proudly.
A new constitution, Mr. Chairman, is like a new house. In it there must be room for the whole family. We are part of the Canadian family and have been so for almost a century. In our new constitutional house there must not only be room for all of us, but we must enter it through the front door together,
culturally equal, and, at least in the provincial classrooms of the nation, linguistically equal.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lupul.
We have Mr. Hnatyshyn, followed by Mr. Lewycky.
Go ahead, Mr. Hnatyshyn.
Mr. Hnatyshyn: Thank you very much Mr. Chairman. 1 would like to take this opportunity of congratulating the Canadian Ukrainian Committee on its presentation. Doozje dobre, as they say in a certain language. From a Scandinavian member of the NDP, I am very interested in what I take to be two main concerns expressed in your brief.
The first deals with the whole question of the protection of individual rights and the role this constitution is going to play in terms of that very important function that it should play. I know that you have some serious objections, as expressed in the course of your brief and presentation, with respect to the operation of the constitution as a whole, having regard to Section 1.
I must tell you that I share your concern about the wording of that particular clause. It seems to me to open up the prospect and possibility of some substantial exemptions and exceptions from the rights that are apparently contained in the total package on the charter of rights.
You have indicated, in the course of your presentation, that you thought that that clause should be deleted from the provisions.
So, I would like to ask you whether you have given any consideration as to what you would have in place of that clause, if anything, or whether you think a simple deletion would be satisfactory? In other words, what do you see in place of that, if anything?
Mr. Orest Rudzik (President, Ukrainian Canadian Committee, Toronto Branch): If I may respond to that, Mr. Hnatyshyn, I think our position would correspond pretty closely to the position outlined the other night by in effect, another Canadian of Ukrainian descent, Professor Walter Tarnopolsky, speaking on behalf of the Canadian Civil Liberties Union, I believe.
As a practicing lawyer, what concerns me is, first of all, as the provision stands now it comes pretty close to being a tautology. Obviously, in any parliamentary system Parliament is sovereign and fully capable at any one moment of over-riding any other previous enactments. We are not like the Americans who can enshrine a bill of rights and move it up into a kind of platonic heaven and then refer to it for refuge and security. We have to live with the institutions that we are very happy to live with.
So it strikes me that if we do not accept it as a tautology, then we are in fact enshrining a rather dangerous precedent that we, as an immigrant group, has experienced in World War I; that the Japanese have experienced in World War II; and as our French Canadian kin have experienced as recently as October 1970; the ease with which a government can, if it
feels that an emergency is upon them, exercise their parliamentary society.
Our preference would be to see these rights enshrined absolutely; and then there would be, at least, an onus on the part of the government of the day to explain to its electorate why it feels the emergency is present.
In other words, this seems to be legitimizing a kind of understood, common usage which, I think, has no place when one is speaking of very fundamental liberties. We are speaking about liberties which are, in a sense, prior to later cultural development.
I think Professor Tarnopolsky and some of the other spokesmen expressed their anxiety that this be tacitly accepted as a kind of legitimization of the government, perhaps, being too willing to lean to the opinion of its own day at the time when an apprehended emergency occurs. As I say, we have a bit of historical experience to bear this out.
Mr. Hnatyshyn: I take it, from your answer, that you would prefer to see Section 1 deleted altogether, and having no reference whatever to any normally acceptable legislative jurisdiction contained in any part of the Charter?
Mr. Rudzik: Quite so.
Mr. Hnatyshyn: I would like to move on, then, on the same theme with respect to your attitude, whether you have given consideration to the amending provision, namely, the one part of that which involves a referendum. I want to know whether you have considered the aspect of a referendum in the same light, in other words the interest of minority groups in our country when changes might be forthcoming and presented in the Charter of Rights. Do you have any apprehension about the provision with respect to a referendum or the consequences of that kind of amending procedure?
Professor Lupul: Well, you can tell from our brief that this is not something which we have considered; not for any good reason.
As you know, we are one of those very funny groups which have always had lots to say about the relationship between language and culture—for very specific reasons, our predicament in this society, with the Ukraine itself being in the empire of the Soviet Union
I personally cannot speak for the Ukrainian Canadian Committee as an individual outlining opposition on the referendum.
Mr. Hnatyshyn: I take it, it might be a fair assessment of the position on the basis of what you have already said, that any system of amendment which might in fact prejudice minority rights or rights which are contained in the Charter of Rights would be regarded with some skepticism by your Committee?
Professor Lupul: I can speak personally, you know. A referenda or something of the same kind of thing we were talking about earlier, they are a form of political pragmatism which renders bills of rights redundant.
Mr. Hnatyshyn: That is a pretty damning statement I would say, with respect to the referendum. I share that point of view
that there are some very serious questions with respect to the use of the referenda in a parliamentary democracy, inasmuch as minority rights are sometimes in jeopardy under those circumstances and especially in times such as you have indicated in your brief, where the majority of public opinion on a particular point of view is quite popular at the time.
Well, I wanted to get into this reference in your brief to educational rights. You seem to indicate here that you are concerned about the invasion under this particular Charter of the rights that now exist within the provinces to control education within the boundaries of the province. Yet, you seem to indicate a sort of acceptance of that proposition in suggesting amendments which will in effect meet some of your hopes and aspirations for minority educational rights, particularly the rights to Canadians of Ukrainian descent.
Which do you feel more strongly about, the invasion or the necessity of having something in the Charter?
Professor Lupul: There is no question about that, we want the present Liberal government to liberalize the provision in Section 23(1) and I think that should not be too hard.
There is no question, we have no problem with the invasion. It would be beautiful, we need it very badly where I live.
Mr. Hnatyshyn: Yes.
Professor Lupul: In Manitoba and Saskatchewan, where we have the same kind of legislation that permits now, on a discretionary basis, genuine bilingual immersion programs in any language other than English. However, these are very often arbitrarily tampered with by school boards denied, reluctantly granted, and we would love to have this, there is no question of that. But not for only one group, it is exclusive and that is not going to do the group any good. I can assure you of that.
The kind of, not bitterness perhaps, but it is a feeling of being left out, of being somehow less than someone else who is also minority, and in many cases even smaller if you like in terms of demographic figures. It is not a pleasant feeling for someone like myself whose family has been here now into the fourth generation. I do not like being given to understand that somehow the kind of thing that is important to the group I come from is not of equal value to Canada and who feel at home in a country like that. The law that actually does that from the top, arbitrarily, is something which I do not know how anybody could support. It is not at all the invasion; it is the invasion on behalf of a singular group outside the province of Quebec and I might add, a singular group within the province of Quebec. If you think what that means to the province of Quebec, I find it shocking in terms of what we have heard for the last, at least the last five or six years. Bill 101 must mean something, I know we do not like it, but it must say something about that society that is important to it.
Do you just simply say, “It is all nuts. It is no good. It is all wrong, all wrong.’’? The primacy of French must exist, yet you
are telling the unilingual anglophones who are two thirds of the 1 million there of an angloculture background are unilingual English and you are telling them, “It is quite all right, Jack, to remain so, we guarantee it.” Heavens, you want peace in this land, you want unity on those terms? That is shocking.
Mr. Hnatyshyn: Mr. Chairman, 1 wonder if I could ask Mr. Lupul in the course of his brief and the presentation he made, he was critical of the fact that there has not been what he considered to be sufficient consultation with the minority ethnic groups in this country before the constitutional provisions have been brought forward. I take it that he feels that possibly more time should be spent in a truly consultive fashion by this parliamentary Committee, and he would be in support of not having any deadline such as December 9 to get all this wrapped up, and packaged up, he would prefer to have a little longer time.
Professor Lupul: If my son were here, he would tell you that he believes in constituent assemblies. If there could be a change which would liberalize Section 23(1), and if you could get the change that would give us Section 15(3), I would not care if it happened tomorrow.
Mr. Hnatyshyn: I wonder …
The Joint Chairman (Mr. Joyal): Two minutes.
Mr. Hnatyshyn: Two minutes, well, just one final question then. I am very interested in Mr. Lupul’s delegation’s sort of over-all view of the multicultural society in Canada. You mentioned specifically some of your concerns about the way in which the multicultural fact in this country has been denied, or downplayed in terms of legislation, opportunities for the government to demonstrate its real commitment to multiculturalism.
I wonder if you could in conclusion to my questioning, at least Mr. Lupul give some idea of how you see Canada, what do you see the role of multiculturalism is in Canada, what is necessary to achieve that?
Professor Lupul: Well, as far as I am concerned multiculturalism is the very base of the root for national unity. It is this very diversity, we speak of it as cultural diversity, multiculturalism, pluralism, I do not care how you speak of it. It is just this very variety, properly accepted and respected, or fully accepted and respected is what will hold us together. It is what will divide us, what will destroy us if we attempt to set up one pedestal for John Bull; one for Jean Baptiste, and another for Yvon Banyak. It will never work, we are not that kind of society and you know that. We are one country with many regions and a very, very demographic base. We have many generations and various integrations. We know that, that is what makes us different, wonderfully different.
I am absolutely convinced that within that kind of a framework there is no danger whatsoever to the official languages, to the French language, to the English language in the province of Quebec, because it will live within this cultural diversity, the linguistic diversity. Yet how can it die under those
conditions, but we will kill it if we do something in law and this is the highest form of law, the constitution, that will snuff certain things out.
I ask you gentlemen, and ladies, what will we gain; how much better off will we be when there is no longer the chance for a Hebrew-English bilingual combination; or a Hebrew-French-English trilingual combination in Quebec; or Ukrainian-English out west; or German-English or Cree-English, how much richer can we be? How will it pay off, if you can tell me that I will stop speaking.
Mr. Hnatyshyn: Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much Mr. Hnatyshyn.
Mr. Lewycky, and after that Mr. Mackasey.
Mr. Lewycky: Thank you very much Mr. Chairman.
It is delightful to have a fine group such as you. Mr. Lupul had mentioned at the beginning Mr. Chairman, that they had the desire to search for balance and I have been most delighted with this particular brief presentation, because it has indicated a balance, it has indicated a depth of thought and I am very pleased also, Professor Lupul with your historical sketch, your outlining some of the historical milestones in what we might consider the multicultural history, at least from the Ukrainian perspective in Canada.
I also enjoyed your analogy about equating the constitution to a house. It would seem that you are indicating that at this time this House is due for a renovation and I think you made several different suggestions here.
I was pleased to see a reference to the Prime Minister’s statement in 1971, when he stated in Parliament in October that he defined Canada’s identity as multiculturalism within a bilingual framework.
At the same time, he also said that he felt that Canada should be pursuing a vigorous policy of multiculturalism and next year represents the 10th anniversary of this particular statement and it had the concurrence of the House.
I was just wondering if you could just paint for us a little bit further some of the things that you see as being essential to pursue such a vigorous policy in terms of the outline that you have indicated here.
For example, the one question I have is that there has been mention here about a preamble that had been suggested earlier, we have no preamble to this resolution. Would you feel that the recognition of Canada’s multicultural or multiethnic makeup would be better made in the context of the Charter as we have it now, or in a préambule, what thoughts do you have on that?
Professor Lupul: Well, obviously if there would be a preamble, if you are going to include things like federal, bilingual, which tend to define the nature or entity of the country, you should also include multicultural.
To us, quite frankly, and more importantly is the suggestion addition to Section 15, which would be (3):
Everyone has the right to preserve and develop their cultural and linguistic heritage.
A preamble, as you know, is sort of a symbolic thing, it is nice to have it there, it is nice to see yourself reflected if you like, in the constitution in that way, in that place. It really does not mean anything. It is those specific provisions. When you say there is a right, everyone has the right to develop their cultural and linguistic heritage, then if you have something in mind you can go after a legislature, you can go after it in a court, you can make your case. So that is regarding the preamble
Mr. Lewycky: I notice that you had to make reference to the area of language, and I believe that language does happen to be a key to culture, it is not just Ukrainian dances and Ukrainian food that make up culture. People have often stated that language is this particular key to culture
One of the things that impressed me is that you seemed in your brief to have a great degree of balance. You are not wanting to trample down on the French or any other linguistic group; you seem to indicate that you just wanted to have an equal partnership in this constitutional house. Considering that the multicultural element in our society represents about one third of the Canadians, I wonder if you could just tell me what your vision is and I am going to ask you to be very altruistic for the French, let us say, and I seem to feel that you do not want to trample on the French by making sure that the Ukrainian are brought up.
Professor Lupul: Well, first of all, sir, with all respect to you, one third of Canada, not only one third of Canada is multicultural. I mean, the whole country is made up of groups, cultural linguistic groups and some are large, and some are bigger. They are all part and parcel of our cultural make up, cultural variety. I am not very keen on having multiculturalism identified with something called the third group element, fourth, whatever it may be.
We all have ancestral backgrounds, every one of us. Some of us have been here less time, but we all come from somewhere in terms of homeland, background. Some of us are larger, some are smaller.
Now, as far as French is concerned, I do not know whether I have to testify on the Bible on that, but I assure you that from experience where I come from that it was on the coattails of the Ukrainian bilingual program in Edmonton that the French bilingual program in the public schools of Edmonton came in. After we got our kindergartens in January of 1974, and we got the first grade started in September of 1974, English-Ukrainian bilingual immersion. It was very easy for public school officials in the City of Edmonton to start advertising French kindergartens and they did. In the fall of 1974 when our kids were entering into the Ukrainian bilingual program the French kindergarten program was getting off the ground where it did not exist before. The next year when the bigots woke up to the fact that in fact the public school, I emphasize the public school system of Edmonton was actually cultivating French bilingualism, there were phone calls to officials in the same school system telling us you should not be doing that in this town, you should be encouraging Ukrainian bilingualism and that same official had no problem at all because he said we already have Ukrainian bilingualism. So French was all right.
This is what I mean when I say that minorities live and die together. When you grandstand, that is when you catch the flack, that is when you get the backlash. When you want to go it alone, when you want to be exclusive, when you want special status, that is when people start disliking you, it is as simple as that.
I have been from coast to coast as a member of the CCCM, the Multicultural Council, I have been an Executive member for six years. Every time I argued the liberalized concept of linguistic duality I had no problems with anybody. Any time you took a narrow view of it you always ran into the same arguments of which I am sick to death. I do not care where it is. So that is the answer I will give you.
The Joint Chairman (Mr. Joyal): Thank you so very much, sir.
Mr. Lewycky: Just one final question and I really appreciate the assurance that you gave me and I am sure that many others that may have had any apprehension would be assured by the statements and also the historical example that you gave in Alberta.
My final question relates to just the whole vision of culture and multiculturalism. My own view is that culture is one of the renewable resources that we have in Canada. I know that I value the fact that I can speak a little bit of Ukrainian and I can read a little bit of Ukrainian. I noticed that when I had been overseas I can read the Greek alphabet and I can read the other languages where some of my unilingual friends were not able to do so. I think that probably if we were to enshrine in the constitution this multicultural fact we probably would have a greater impact as cultural ambassadors to other countries, because Canada is so unique in this regard.
I was just wondering what you think the benefit to Canada and the world would be if we did have these requests that you have made enshrined in our constitution.
Professor Lupul: Well, I went abroad in 1968 on a sabbatical. I studied Ukrainian fairly well, and I discovered the real difference suddenly when I moved out of Germany into Czechoslovakia. In Germany I understood next to nothing. “Links”, they told me, and I thought they were talking about rotary and they meant, left, and I did not know the difference.
Suddenly, in Czechoslovakia, which is a Slavic country, I suddenly could make my way around. The same in Bulgaria; the same in Poland; and the same in Yugoslavia; and of course in the Ukraine. I could see through all the nonsense; all the slogans could fool nobody, I could also read it.
Now, if you want to do business do not do what I found in Kiev, that is in the Ukraine, where the manufacturer of a cigarette machine, the Soviets wanted badly to have filter cigarettes finally, this is in 1968, April. So they got this expert from London, a representative of some firm and guess what he brought with him, a Yugoslav who could speak Russian and
Ukrainian and perhaps some other language, the Slavic language. Why must we with our rich, rich linguistic resources, most of them nascent, why must we not tap them, take advantage of them? In Japanese trade, trade with Eastern Europe, the Arab world, there is no question about the importance of that in a trade dimension. I have lived through it, I have seen what it means.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lewycky.
Mr. Mackasey, followed by Mr. Epp.
Mr. Mackasey: Thank you, Mr. Chairman.
I, too, first, speaking for the Liberal party, welcome your participation this evening and I have learned a lot from your rather forceful presentation. You have reminded me, sir, that all of us are members of a minority and I often say this in public, that all Canadians, regardless of their background are part of a minority, whether it is the French speaking Canadians of Manitoba, the Ukrainians in every province, or the Irish in Quebec, of which I am a very proud member. I have had a lot to do in public life with Canadians of Ukrainian origin, both in Montreal, the St. Charles’ area and in Lincoln which I now represent. So I want to say that I share your views about the need to amend, perhaps strike out, Section 1 of the Charter, the section which in effect negates all the fine words that come after it. So I think I could safely say that because of your representations and all the witnesses who have been here before you, and those who will probably be coming after you, that the general consensus of this Committee, certainly on the part of the Liberal party, is that that particular Section 1 be amended. I am not prepared to say for the government that it will be struck out entirely as Professor Tarnopolsky recommended, but perhaps along the lines, for instance, the spokesman for the New Brunswick Human Rights Commission suggested, not necessarily strike it out but certainly reword it so that there will be some meaning to the entrenchment.
I am pleased, too, that you stuck very strongly to your point that human rights should be entrenched in the constitution; am I right?
Professor Lupul: Yes.
Mr. Mackasey: And would you like to elaborate a little more because these things are going to be read by Cabinet, do you have any particular reason why, do you want to state it once more in brief form?
I will mention this while you are formulating your thoughts, that there is still a difference of opinion in this Committee, a fundamental one, a logical one and an acceptable one, that rights not be entrenched. I happen to have the view, particularly after listening to Canadians of Japanese origin the other day that they should be entrenched, but there are some members here who feel that it should not be entrenched.
Professor Lupul: Well, I think the only people that can live very comfortably in a society where you do not have an entrenched bill of rights are those who are in the majority. If
you are a member of a minority and you read history, you see minority groups abused time and time again, arbitrarily, no defence, very often they have a difficult time expressing themselves and they cannot fight back legalisticly because they have not got the funds in many cases. There is just not the kind of security that you need, and then the worst part about it, the worst part, the politicians can be very, very difficult and sometimes very silly, but they can always be reached; it is the bureaucrats that frighten the hell out of me.
Mr. Mackasey: And of me.
Professor Lupul: Because you cannot reach them. And they give much advice, as you know, and they do all kinds of things. They frame regulations. It is those things that frighten me and you have to have a means to defend yourself against those things and that becomes very important to us
Mr. Rudzik: Mr. Mackasey, if I might just add to that, I think that we are so firm in the concept of entrenchment because of the past experience we have had, after all we do now have a bill of rights, the Diefenbaker Bill of Rights, but I think its career in the courts has shown how very, very easy it is to quite reasonably, to use the word “reasonable” out of the first section, to restrict the scope of that. I think Drybones was the first decision that came almost by way of a curve, it involved an Indian who could not purchase liquor at all in the Northwest Territories. That is hardly a case one wants to remember as demonstrating our concern for human rights.
We are talking here, I suppose, not even of minorities any more but of the individual who is the final, basic, irreducible unit in any society, and it is this individual who is threatened even more easily if he happens to be coloured by a minority that he participates in. So that if the Diefenbaker Bill of Rights was right in its time, I think it needs reiteration to make our judiciary, our bureaucrats and ourselves aware of how very, very much we subscribe to these principles.
Mr. Mackasey: Of course it goes without saying that what is to be entrenched should be as perfect as possible, which comes down to Section 23(1).
You mentioned quite eloquently the impact of Bill 101. I was in the Quebec Assembly when that bill was adopted. I do know it inside out, and my own point of view is that what discrimination it contains is not towards the English Quebecker, and I use the words “English Quebecker” as it is used genetically: anybody who is not a French speaking Canadian. The English speaking group of the Province of Quebec is surprisingly bilingual in numbers, statistically very high. I consider myself bilingual; my family is bilingual; my children are bilingual; we are bilingual because our school system stresses bilingualism and Bill 101 is discriminatory to the extent that it denies French speaking Canadians access to the English speaking schools. It removes from Canadians who are not Celtic in origin, who do not come from the British Isles, Canadians of Ukrainian background, the right to go to the
school of their choice and this is based on a genuine fear that somehow Canadians other than those that originate in the British Isles were somehow being assimilated in the English community and it is hard for me to understand the fear of the huge majority numerically from assimilation from the present English speaking Quebeckers who number less than a million. The real threat to the purity, the strength, the vitality of the French speaking people in Quebec comes from the electronic media, television and radio, but that is a subject that you and I could discuss on another day
Professor Lupul: Mr. Mackasey, the amendment as proposed would take away from Bill 101 what I consider to be a very unfortunate thing, and that is the desperate need, such a desperate need to secure the French language in Quebec, that there is no attention paid to the importance of being bilingual in Quebec.
Mr. Mackasey: Well, I agree with you.
Professor Lupul: I understand that desperate need now, after all I would have to disagree with you a little bit, I think, in your statement that the anglophone minority of Quebec has been as bilingual as you say.
Mr. Mackasey: The English speaking minority.
Professor Lupul: That is the people of Anglo-Celtic, that is in the sense they are called British . . .
Mr. Mackasey: Statistically we are more bilingual than the French speaking Canadians of Quebec.
Professor Lupul: Well, that may very well be, after all that is kind of their province, they can be what they want to be.
Mr. Mackasey: It is also my province, I am sorry. I am talking minority now and I am surprised that you would suggest that I have no rights as a Quebecker to my province.
Professor Lupul: All I am saying is that anybody who is a minority should be able to speak to the majority in the minority’s language. Surely.
Mr. Mackasey: Flaving said this, let us switch to your problem, and I am concerned that since education has been very clearly and very jealously guarded by the Province of Quebec, quite logically, we all want the preservation of the French language and culture and joie de vivre, but to me it is one of the magnificent things about living in Quebec, I have no difficulty with it. Could you tell me why you have not been able to make more impact with the provincial governments of Alberta, Manitoba and Saskatchewan so far as having your language officially recognized in the field of education, it comes clearly under provincial rights. Now, I am not talking about the constitution but I am leading up to the constitution.
Professor Lupul: Well, I think one of the main reasons is precisely because they are afraid that the French will object, where I live. I think this is true for Saskatchewan, true for Manitoba. Somehow this is putting the French in our provinces on the same footing as all the others, so I guess that I would have to say that it is just too touchy an issue for provincial legislatures to do that. However, it may be that, who knows, maybe this constitution might make it easier
Mr. Mackasey: Well, I think if men of good will such as yourself have a chance, this constitution at least can be the beginning. You see, what the government is trying to do, Professor, and I want your views on it because they are important to me, what the government is trying to do after perhaps half a century of bickering between the federal government and the provincial governments, is to bring back the constitution to Canada with, more importantly, a formula that will provide an opportunity for Canadians to amend that constitution. We are doing it in a very unorthodox way, not the preferred way. We would have preferred to see it come back after long discussions with the provincial premiers, where the provincial concern, because they are close to people, could be expressed at that table, concern for people, for preservation of a way of life which you and I agree is less than perfect. We have been unable to do that.
At the same time, because of that sensitivity which you talked about of the provinces and minorities within the provinces in the field of education, and the same sensitivity in a federal system between the federal government and the provinces, the provincial premiers, we will be hearing one in a few minutes and you might stay around and listen, you will see what I am talking about, you will find that what the government is trying to do here, and perhaps it is wrong, is to come in with the bare minimum, and I think you have recognized that, with the hope, maybe naive hope, that provided with a formula and provided with people like you to push us, that they may build on that minimum base, and I may be wrong but I leave my case with that.
Professor Lupul: Well, why not do it so that you do not have to defend endlessly what the vast majority of people in the provinces of Alberta, Saskatchewan, Manitoba, and British Columbia certainly, would regard as an arbitrary selection of one minority for salvation in this big vat called the AngloAmerican continent, which is doing its best to do us all in
Mr. Mackasey: I see my time is up and I just want to end on a note and say that I do sincerely hope as an individual that somehow in reviewing the proposed resolution we can find some ways and means of recognizing officially in that constitution that this is indeed a multicultural country.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey. Mr. Epp.
Mr. Epp: Thank you, Mr. Chairman.
I intend to be brief but 1 want to thank the Ukrainian Committee for being here and I have a number of questions for Mr. Lupul.
First of all, sir, I would like to get into the matter of second language education, that of course depends on the area where we live, or third language education, again depending on the area. I agree with you that many ethnic groups have, for long periods of time, made the valid point that the preservation of their language was the first responsibility of that community. But additionally they needed the endorsation of government that in schools that education of language could in fact continue.
I would like to ask you to what extent is the so-called Alberta formula, you mentioned earlier the difficulty about in fact moving in this area. What is your assessment of the so-called Alberta formula relative to third language education?
Professor Lupul: What do you mean by third language education?
Mr. Epp: Well, if you want a second language education, depending on the area, I thought I would put that caveat in, and you can use it that way.
Professor Lupul: Well, actually, it is working out fairly well to this point. We have had some difficulties, as have had the French, with some school boards
Mr. Epp: Do you feel it is more a local school board problem than a provincial government attitude?
Professor Lupul: Yes. The way it is now, school boards arbitrarily decide for various reasons not to move. The French, for example, in Red Deer could not crack the school board. We had problems in Lamonte. So it is working out not too badly here and there but we run into real problems and so do the French.
Mr. Epp: I know, from what I have seen of the Alberta experience, that while there are administrative problems that need to be ironed out, and you have obviously mentioned the most glaring one, that at least an attempt has been made, and I am not looking to Alberta as the example, but in the sense of how do we get around the problem, where are the solutions? There is a practical solution. While all of us, I think, recognize some of the shortcomings, we at least see it as an attempt to arrive at a solution and to devolve it further towards the point that you made earlier on behalf of your association.
I would also like to have an opinion from you, Professor Lupul. It is my view, and I believe that of my party as well, that the concept of multiculturalism must go beyond good intentions and high-sounding phraseology, that in fact it must become practical, and in order to do that it must receive the imprimatur of legality.
For example, I was disappointed that when we had the immigration bill before us, the so-called new Immigration Act, that an amendment including that not only should the country be bilingual, that is in the intent and purposes of immigration in Canada, but it should also be multicultural, I thought it would be the first time that the concept of multiculturalism would receive a legal definition, at least in the area of immigration. We were not able to convince the government of that date to include that term and so I would like to ask you what effect, should an amendment of that nature be included in the Charter, what effect would it have on multiculturalism and its development and promotion in Canada in your opinion?
Professor Lupul: Well, it would have a tremendous effect. Your constitution is something which colours an atmosphere or climate of a nation. It is like your mass media, it is like your politicians, like your educational system, they create a framework, the ideological framework within which you live. The
constitution is a very important thing and there you see it, yes, it is bilingual, it is federal and it is multicultural. The symbolism of that, the value of it is inestimable. So, from that standpoint, the feeling of belonging, being recognized and therefore belonging in a country is great, it is large, you see.
However, I would have to simply repeat what I said earlier, this is why we have Section 15(3), I really do think that not to continue what has been the policy of both political parties vis-à-vis multiculturalism, both, which is largely tokenism; I have lived through it and 1 know; not to continue that, let us put in a right as is suggested. Listen, why not give it the equality of status with bilingualism which in fact the policy does give it? Why not give it the same status in the constitution? Why? Then, if you do that, you are likely to get funding which is somewhat equivalent. The multiculturalism policy, whether under the Conservatives or the Liberals—the funding for it has been pathetic when you compare it with the kind of funds that have been available for French/English bilingual education, which I do not object to; I only wish we were as lucky, that is all.
December 8, 1980, Mr. Norman Whalen, 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. 21, p. 8 (click HERE)
Mr. Norman Whalen (Vice-Chairman, Canadian Federation of Civil Liberties and Human Rights Associations): […] Mr. Chairman, as you are aware, there is particular concern in the Indian community throughout Canada today that this bill will seriously jeopardize their rights. This concern we believe is legitimate. We think that the Government of Canada should assure the native peoples that their rights will be protected and that nothing in this proposed constitution will abrogate these rights. We have, accordingly, recommended that Section 24 be redrafted to ensure that this protection is provided.
Apart from the native peoples and the bicultural nature of Canada, there are many other linguistic, ethnic and religious communities which make up the mosaic of this great nation. We believe that reference should be made to this fact in our constitution. We also believe that guarantees should be established to encourage and enhance the rights of these peoples to fully determine their social and political status within Canada, and to fully pursue their economic, social and cultural development. To confirm these rights at this time would be to confirm
the strength of this nation which is nourished and sustained by its very diversity.
Now, Mr. Chairman, on this particular point, as Mr. Webking indicated, our organization is an umbrella group, and one of our member organizations, La Ligue, in the Province of Quebec, has asked that we express their disagreement with the inclusion of the words “within Canada” in that submission. While voicing that rider, we would still like to express that it is the view of the Federation of Civil Liberties that the expression of this diversity should be within Canada.
Mr. Chairman, there is a danger that this bill could be viewed as an expression by the Canadian government of its nonconfidence in the people of Canada, Canadians, we believe, will support a strong and clear statement in a constitution of rules to govern both the people and the government.
We have found, Mr. Chairman, that this bill is inadequate. Section 7 alone reveals a bold initiative. This one section may move us one small step forward in our search for rights and freedoms, We cannot accept, however, that this is the best that we as Canadians can do.
December 9, 1980, Mr. J. A. Mercury, Mr. Hawkes, Mr. Head, Mr. Nystrom, Mr. Laureano Leone, Mr. George Imai, Mr. Algis Juzukonis, Mr. Andriy Bandera, Mr. Parekh, Mr. Fraser, Mr. Lewycky, Mr. Lapierre, 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. 22, p. 11 (click HERE)
Mr. J. A. Mercury (Executive Secretary, National Black Coalition of Canada): Ladies and gentlemen, I only have one point that I would like to make clear and that is I would like to speak on our Canadian policy of multiculturalism. It is a policy that clearly suggests that all the peoples of various
races, colours and national origins can live and work together in peace and harmony. I think this goal has not yet been attained, but even granting the existence of some degree of prejudice and discrimination based on race and other factors, this country is, nevertheless, in my estimation making considerable progress.
The black and other nonwhite population of Canada should be given the opportunity to develop their skills and abilities and to make our contributions to this society in freedom and with respect, but in order to do that I feel that it is clearly indicated that the governments committment to the protection of the policy of multiculturalism must be also entrenched in our constitution.
I have no quarrel to make with the present emphasis on French and English as to two official languages, but constitutional protection must also be given to the preservation of the multiethnic nature of our Canadian society. We should not forget that roughly one third of the population of this country is neither English nor French.
Mr. Hawkes: On page 10 of your brief. in your concluding comments on page 10 and the top of page 11, I would just like to read you two or three of your sentences and just ask you to comment:
We would hope, however, that this important step can be taken in a spirit of co-operation rather than one of bitterness and anger. The Canadian policy of multiculturalism clearly suggests that peoples of various races. colours, national origins, et cetera, can live and work together in peace and harmony. This goal has not been attained.
In part are you addressing yourself to the constitutional process that we find ourselves in? Are you suggesting that unilateral action and bitterness that may come out of that should be avoided through some change in process?
Mr. Head: Yes, we are suggesting that. We are suggesting that we have been, shall we say, dismayed with the tremendous amount of bitterness aroused by the process. While we are a 100 per cent in favour of the entrenchment of the Bill of Rights, we are dismayed about the fact that there has been so much controversy and confrontation and anger around it, and my own inclination would be to go a bit slow and I was very pleased to see that the government was to extend the time of these hearings to February 6. and I had hoped that would make some difference to the people who felt they did not have time to make their contribution, but I was just reading the statement the other day of Mr. Claude Ryan in Quebec who was suggesting that perhaps we ought to have one more attempt at working this out by the provincial governments. I do not have very much faith that a great deal would happen if you did that; on the other hand, I certainly would not object to seeing an attempt made again.
Mr. Hawkes: You have said to us clearly that you do not trust the courts absolutely but in the kind of real world we live in you think there might be more protection coming from the courts, from an entrenched bill of rights and the place of the courts in that process.
I am wondering if you have given any thought to the Canadian system of judicial appointments. You drew some analogies to the US, system and in that system judges are elected at some levels and certainly judges at the supreme court level are subjected to considerable public scrutiny before appointment to the bench, ratification by congress and the senate. I am wondering if you feel that if we are moving to entrench something the Charter of Rights, if we are putting more responsibility in the hands of Canadian courts, whether or not you think there needs to be some institutional change in relationship to the appointment of judges, some greater examination of their backgrounds and voting records and things of this kind?
Mr. Head: Well, I feel that a little more needs to be done that way, yes. I think there are limits, shall we say, there are very strong inadequacies in both systems. Certainly in some of the states in the United States judges are elected and they have to run for office like any politician. in others they are appointed and so on, in some they are appointed from a list supplied by the American Bar Association and so on.
I would think that one of the things we might do here in Canada. in terms of appointment of judges, is to have qualified people, perhaps the Bar Association or someone, supply a list suggesting names, and this does not have to be one name, it could be three, four, five names, from which the government might appoint. I think that we have a long way to go and a lot more thinking to do about the appointment of judges. but at least judges to some extent are free of the kind of day-to-day political pressure which politicians have to be responsive to if they want to keep being elected.
We know very well that public attitudes changed rather rapidly, particularly when a crisis arrives. We see the rise of groups like the KKK here in Canada, and while you and I might never have thought, I certainly have thought it would
never happen in Canada, it is happening. This is happening because, and I have talked to one of the leaders of the KKK, he has said clearly as far as they were concerned the soil in Canada is ripe for the evolution of a group like the KKK and they are busy establishing themselves around the country.
If they become powerful enough then people will pay attention to them and they may have some influence. I hope not, but they may. I would think the court could resist that kind of thing, if they had the kind of independence which I assume that they do have.
I realize again that this is not absolute. Someone said that the Supreme Court reads the newspapers too, but I would have a little bit more faith, yes, than I would have in legislatures and in city councils, yes.
Mr. Hawkes: This is my last question. Have you any suggestions for us, and I would go to Mr. Mercury on this, but you have indicated clearly that you would like to see put into this new constitution some set of principles that would bring to light the multicultural nature of Canada and entrench that as a viable and positive affirmation of the reality of the Canadian existence.
Have you any specific suggestions as to clauses, or places that we should consider putting this, and in particular do you have a perspective on the need to protect more than two languages, some kind of positive affirmation principle of third and fourth language training for individuals.
Mr. Mercury: I recognize first of all that we do have two official languages. I do not think that you will perpetuate other languages and cultures by attempting to entrench them specifically in the constitution because there would be far too many to have to do that to, but what I am suggesting is that there could be an alternative opportunity made apparent in the constitution for individuals from these other cultural groups to perpetuate their culture with the official sanction of the government.
Now it is more or less of a singing and dancing sort of routine, like we love you madly once a year as long as you sing and dance and then go back to your festivals later. But to me that is not what multiculturalism is all about.
I think what happens is we tend to lose sight of the fact that these people from other nations have also had a decisive input into the historic content of this country and have given us of their culture and of their learning, and by the same token I think it is not recognized sufficiently; and the way in which we could recognize it could be that at the beginning of July when we celebrate Canada Day we could make it a multicultural day and talk about the diversified cultures in this country rather than just talk about the so-called founding nations.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes. Mr. Nystrom.
Mr. Nystrom: Thank you very much, Mr. Chairman.
I would like to welcome Mr. Head and Mr. Mercury here this morning and to begin by picking up the answer to the second last question by Mr. Head when you were referring to the KKK, the Ku Klux Klan. I want to ask you a couple of
questions about whether or not you think the Klan’s activities would be affected by the Charter as the Charter is written and to what extent you think a Charter of Rights should curtail the activities of the Ku Klux Klan.
I want to say as a preamble that I, like you, am very concerned about the possibility of the Klan’s growth in this country. It is a very reprehensible organization and it is one that is a very negative force in our society. I say as a member from Saskatchewan, because in my province back in the 19205 the Klan had a major influence on politics, I think the Province of Saskatchewan is the only province historically in our country where the Klan way well organized, where it had a major impact back in the 1920’s. It had an impact in the 1929 election and succeeded in helping turf out the Liberal government of that day and electing in its place a more conservative alternative.
In those days of course in my province there were not any black people. The Klan’s activities were directed mainly against Catholics and immigrants from Eastern European countries. I think of people that came in from Poland, the Ukraine. Czechoslovakia, from Russia and the like, so I have a really negative feeling of hostility against people like the Klan who base their whole raison d’être on racism and attacks on other people.
I would like to ask you whether or not you think the Charter as written would have any effect on an organization like the Klan, and secondly to what extent should a Charter of Rights curtail their activities in light of the fact that we also have enshrined here such things as freedom of assembly and freedom of speech.
Mr. Head: This is no doubt a very tricky question. In some of the organizations that I have been involved in, both in the United States and in Canada since I have been living here for the last 20 years, we have had to wrestle with the situation and you never get a unified opinion. You get differences of opinion across the board, and the whole concept of freedom of speech in terms of absolutes is one thing. As I indicated earlier, it has to have restrictions at a certain level. I think the tricky point of it is how do you define that balance. At what point do you draw the line?
The usual thing said is you draw the line at behaviour, and this is what our Attorney General says in Ontario. He says when the Klan takes some illegal action we will crack down on them just like we would on anybody else who takes illegal action. That does not get at the question though of what happens as they are building up to that illegal action. Are they permitted to do anything they want to, short of this.
The new Klan is more sophisticated than the old Klan was. I suspect they have legal advise because they seem to be avoiding taking action which will get them in conflict with the law as now written so in a sense then we have to look again at the way our laws are written and say how can we make this law a little more explicit.
I am not a lawyer and I am not sure even lawyers could do any better when they come down to drawing this out. One person said to me some time ago, if you really got into this I
know what would happen, lawyers would have a great time because they would make a lot of money arguing the case.
But I feel that it is up to the government to make it very clear where it stands on this matter. Let me put it this way. I still feel a sense of pride when I hear the ringing words of the Declaration of Independence. All men are created free and equal. All men have certain inalienable rights. We know that those have not been lived up to fully but at least the statement is there that this is where the government is, this is where the government stands, and it will take all the legal methods it can to live up to those statements.
I am saying to a large extent this may merely be symbolical but I think in this case the symbolical act is important. The government has made a commitment in this situation. I will leave it to the lawyers to decide how far you can go in terms of drawing the line. I cannot do that myself, but I feel it is important for the government to state this in its new constitution. Whether it is in the body of the constitution or the preamble, I think this is extremely important and needs to be stated.
Mr. Nystrom: I wonder if Mr. Mercury could add something here, because you are saying you are not a lawyer, nor am I, and we are talking about their activities being in conflict with the law as written.
I ask this again because of a couple of comments you made earlier, Mr. Head, that you had the feeling that the KKK could grow from what one of their leaders has said. I refer back to Saskatchewan in the 1920s again; we were a province of fewer than a million people, and I believe the membership in the Klan in those days was nearly 30,000 people which is an amazingly high number of people for an activity of that sort. You also referred to the possibility that public opinion can change very quickly in a crisis or a major eruption of society and the eruption in our society in those days of course was the mass influx of immigrants from Eastern Europe. I am thinking particularly, as I said, of the Ukrainian people, and up until that time Saskatchewan was primarily an Anglo-Saxon settlement. The English people were the first to come, primarily from places such as Ontario and parts of the United States. So we had this great upheaval in society and because of that unfortunately a lot of people joined the Klan.
I, like you, do not want to rest on my laurels and say it can never happen again. I think history can repeat itself. So I want to ask Mr. Mercury whether or not he can add anything else to what we should be putting in our Charter to make sure the activities of reprehensible organizations such as this are curtailed, yet of course recognizing as you say we need to have freedom of assembly and freedom of speech.
Mr. Mercury: One of the things that I worry about, Mr. Nystrom, is the fact that when we are talking about prohibitive action towards any group, that same action can be utilized against other groups. Incidentally, if I may correct you, the membership of the Klan in the 1920s in Canada was upwards of 40,000 in actuality. One of the things we must not lose sight of is that there are other government institutions in place that
have the tools to do the job right now if they would utilize the authority that they already have at their disposal.
For instance. one of the insidious things we have found about the Klan lately—and as Mr. Head has already indicated, they seem to be using modern day communicative methods—is that we find the Klan in all facets of the communications media, electronic, visual and audio.
Now, I think when an organization does a specific thing or comes into being that is news; but when it is exploited by various facets of the media to boost their circulation, which appears to be taking place with the Klan, particularly in the Province of Ontario, and latterly, we have been getting reports as recently as two weeks ago, for instance, in Nova Scotia, I question whether governmental bodies, such as the CRTC cannot step in and make some prohibitive ruling.
For example, if you were to make a group of people aware that such and such a group is in existence, fine; but when you Find a group spewing the type of garbage this type of organization is doing on open line shows two and three hours at a stretch on consecutive nights, in consecutive weeks, I question whether that is really in the public interest.
I am saying it does not require action in a bill of rights; the tools are there to do the job now if we utilize those tools.
Mr. Nystrom: I would like to switch to another matter if I have time for one more question. I would like to say that the existence of the Klan in my province was the most negative thing historically in the Province of Saskatchewan.
At page 10 of your brief, you are talking about discrimination and you are saying there should be a reasonable test. You are agreeing with the Canadian Civil Liberties Association saying that discrimination should be prohibited on any unreasonable grounds.
I want to ask you about Section 15 of the resolution before us where it says:
15.(1) 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.
I want to ask you why you are calling for a test of reasonableness in the case of race, national or ethnic origin or colour? Because it seems to me, sir, that even in times of emergency, war, great emergency in this country, that there should not be any discrimination whatsoever on the basis of a person’s colour, or his national or ethnic background. I do not believe that anything should justify discrimination on the basis of those factors, regardless of how dire the emergency may be.
Mr. Head: Yes, I agree with you on that. We have had a very long discussion on this this past Saturday, on that very same point you have raised.
What the word should have been is “arbitrary”. It should have been “arbitrary grounds”.
So I would agree with you, that there should not be any discrimination at any point, whether in times of war, insurrection, or apprehended insurrection or whatever the situation may be, on the basis of race, creed, colour or any other
criterion. So, that should be an absolute. So what I am saying is a modification of what is written there.
Mr. Laureano Leone (President, Council of National Ethnocultural Organizations of Canada): Thank you.
Mr. Chairman, honourable members, my name is Laureano Leone, I am the President of the Council of National Ethnocultural Organizations of Canada and a member of the National Congress of Italian Canadians.
To my left is Mr. Navin Parekh, Vice-President of our Council, and a member of the National Association of Canadians of origin in India. To his left is Mr. George Imai, our Secretary and a member of the National Association of Japanese Canadians.
To my right is Mr. Andrew Bandera, a Vice-President of the Ukrainian Canadian Committee, and to his right, Mr. Algis Juzukonis from the Lithuanian Canadian community.
On behalf of our Council, Mr. Chairman, I wish to thank you for the opportunity to be able to address this Committee. Our organization is the newly created umbrella body for over 30 national organizations representing the broad spectrum of Canadians of non-British, non-French descent. As such, we represent Canadians who were born outside of Canada and Canadians whose parents may be third or fourth generation Canadians.
We represent the different languages and different cultural backgrounds but we are proud of our common denominator, the fact that we are Canadians. We cherish this and we want to state so loudly.
Our Council represents, through the individual national organizations, the aspirations, desires and wishes of a wide segment of Canadian society. We are, if you will, a small Parliament of the ethnocultural groups, at least until their representatives will have a place and a voice in the Parliament of Canada.
Our Council strives to be a common voice which represents all concerns and matters which affect the lives of our people and society at large. Today we are proud to be before your Commission and to speak on behalf of our people, on behalf of devoted Canadians who are in danger of being left out of an important debate. We have been regarded as a segmented society, regarded as second class citizens, as minorities among the two super minorities.
The people we represent have been left out and until today not really listened to, but we have worked hard to build this country which is our Canada and your Canada. We are sometimes remembered at most as a footnote, the Chinese for building our railroads, the Ukrainians, Germans and Poles for opening up the richness of our prairies, the Italians, Greeks and Portugese for the building of the big urban centres, be it Toronto, Vancouver, Edmonton, Calgary and Montreal. Yet, there has been very little done to call on these Canadians to share the knowledge, background and experience in the running of this country. On the contrary, in the course of our
short history we have been subjected to internment or imprisonment as aliens and even enemies.
Mr. Chairman, your Committee has a great responsibility to help formulate a new constitution for Canada, a constitution which would be judged by posterity, by the world. A constitution which will be remembered as the product of illuminated minds, or as the result of bickering and parochialism, Our Council has some specific views and comments on the proposed document before you.
The first of these concerns is the entrenchment of the Charter of Rights and Freedoms. The Charter must not be a document based on political compromise, a document of half-hearted intent or dubious meaning. It should be an example to the world, a clear, candid and strong bill which would assure the present and future generations of all Canadians equality before the law, in status and in society.
Do not hesitate. Tell the world, and speak loudly, state that all Canadians in the way God has created them are free and equal people with equal rights and equal protection under the constitution.
The constitution must be a document which will reflect the reality of Canada today and of the future. One of those realities is the diversity of Canada. I am from Toronto and what they say about Toronto can be said of any other city in Canada. Just 30 years ago Toronto was considered the cold wasp city. Today Toronto is an alive, vibrant, beautiful, cosmopolitan city, a city rich in the diversities of its people. enhanced by the cultures and languages of scores of communities. A true multicultural city.
Canada is much like Toronto and when we hear that thee everyone that there are alos the building peoples, the peoples who have contributed to the Canada of today and the people who will build the Canada of tomorrow. Since 1947, Canada’s population has doubled and the building peoples have been the central element in this growth.
Mr. Chairman, we endorse and support the two official languages of Canada but in a multicultural environment. We cannot reconciliate this with the concept of cultural dualism. Our vision of Canada is one in which our culture will be a component of the best that all our cultural heritages can offer. We see the evolution of a Canadian culture resulting from the contributions and attributes of the multicultural pluralistic society in which we live.
We look to a Canada of the future in which our children and our children’s children will have the opportunity to retain and develop the rich heritage, that they will have the guarantee to maintain, learn and study the cultures, languages and traditions of their ancestors. A constitution made in Canada and for a Canada of the 21st Century must give recognition to the multicultural reality of this country, it must be a constitution which will have a meaning for all Canadian and of which all can be proud.
Mr. Chairman, your Committee has received our Council’s brief detailing some of our comments. With your permission, I would like to call on the other members of our delegation to address themselves to the specific issues raised in the brief. At this time, with your permission, Mr. Chairman, I would like Mr. George Imai to continue with our presentation.
The Joint Chairman (Senator Hays): Yes, go ahead.
Mr. George Imai (Secretary, Council of National Ethnocultural Organizations of Canada): Thank you, Mr. Chairman, honourable members.
I come before you not as a first class Ontarian but as a second class Canadian. Born in British Columbia, where I got my primary education in the internment camp, and then forcibly removed to Saskatchewan where I was raised, and then to Quebec for my higher education, and now a resident of Ontario.
I opened deliberately this way to emphasize my strong feelings for the demand of a meaningful entrenched bill of rights in our constitution for all citizens of this country. As in the past, our faith in our legislators is suspect even today. During the First Ministers’ conference we heard some of the Premiers state that we do not need an entrenched bill of rights in our constitution because the provinces protect all of its citizens.
I wonder if those citizens of Alberta, where the crosses were burned on their front lawn, feel that way. Or the East Indian that is brutally beaten in Toronto, or the Philippine that is stabbed in Winnipeg or the members of the Buddhist Church of Quebec which is not recognized by that province today.
Today in all our provinces we have human rights legislation. However, those codes can be vigorously enforced or left to stagnate, dependent upon the whim of the legislators and that is a reality of the situation today in Canada.
Why must three successive federal Ministers of State for Multiculturalism be concerned and come to the defence of the visible minorities? The history of Canada is a history of prejudice and discrimination to many of us who are of non Anglo-Saxon origin.
I would like to cite a few examples of what has happened and what is happening. The treatment of our original Canadians has been and still is abysmal. In the past the denial of the right to work and restricting the bringing in of wives and mothers of Canadians of Chinese ancestry to Canada was evidence of legislative and administrative discrimination. The internment and imprisonment of Ukrainian Canadians in World War I under the guise of being enemy aliens, the internment of the Japanese Canadians during World War II. May I point out, since this was brought up at the First Ministers’ conference, some fundamental differences with the United States. The beginning of the internments were similar. However, the end is quite different. Due to the American Bill of Rights and its judicial system as entrenched in the United States Constitution, one, the Japanese Americans were able to return to their homes. However, in Canada we could not
return to our homes. I wonder if the mobility rights were in effect then what would have happened to us.
Two, perhaps most important, no Japanese American citizens were forced or involuntarily exiled from the United States. This was not the casein Canada.
Three, even as early as 1942, individual Japanese Americans were able to appeal to the courts for a judgement, even though it went against them. We in Canada had no such recourse.
For those reasons alone an entrenched bill of rights in our constitution is fundamental and unconditional. Mr. Chairman, we not only support but we demand a strong and meaningful bill of rights entrenched in our constitution. The constitution must guarantee that what happened to us will never again happen in Canada.
Our plea to you is to give us the right to life, liberty and protection of security. Do not leave us as second class citizens as we are today. Perhaps this constitution may give us, not only protection before the law but give us the psychological uplift to honesty believe that we. too, are part of this nation and not just tolerated in our own country.
Mr. Chairman, as men and women of good will and good faith I hope you will put aside your political differences and work together to bring forth a constitution that your fellow citizens will be proud of.
Mr. Algis Juzukonis (Council of National Ethnocultural Organizations of Canada): Mr. Chairman and honourable members, my name is Algis Juzukonis and I would like to comment on the proposed Charter of Rights and Freedoms.
Our Council, as have others who have appeared before this Committee, objects to the loose formulation of Section 1 of the proposed Charter of Rights and Freedoms. It is under the very guises of concepts, reasonable and in the best interests of a free and democratic society that many Canadians who are members of our constituent organizations have been discriminated against.
Any person would find it difficult to argue, and even more difficult to prove that the internment of the Japanese Canadians during World War II the internment of Ukrainian Canadians during World War I or the disenfranchisement of Chinese Canadians at the turn of the century was not reasonable or generally accepted necessities. The very purpose of an entrenched Charter of Rights and Freedoms is to protect minorities and individuals from supposedly reasonable discriminatory actions by an emotional majority.
The proposed resolution, because of the preeminent placing and wording of Section 1, does not give Canadians that basic protection and fails in handing over powers, to paraphrase the Prime Minister, to the people of Canada. We cannot fully endorse the proposed resolution if Section 1 remains the same.
If there is to be a general limitation clause, then it must be restricted as possible without any, and we emphasis any, limitation on Section 15(1), the nondiscrimination rights.
Canada is proud to be one of the freest nations in the world where every person has equality of opportunity. Canada has also undertaken international commitments in the human rights area and has stated publicly: look, if we err, you can call us to task. So we suggest it is time to give the protection of those covenants to the people of Canada, covenants which give wider expression to human rights than the proposed resolution by including a provision in the Charter for the invoking of international agreements in the human rights area ratified by Canada in the courts.
We would also further suggest the inclusion of a provision in the new Charter guaranteeing legal counsel to those Canadians who are not able to pay for it.
Mr. Andriy Bandera (Council of National Ethnocultural Organizations of Canada): Mr. Chairman, my name is Andriy Bandera, and the second major point raised in our Council’s submission is the question of the entrenchment of a clause in the Charter which would make a clear reference to the multicultural dimension of Canada, and which would guarantee the rights of all Canadians to preserve, enjoy and develop their cultural and linguistic heritage.
Although it may be argued that such provisions should not be placed in a fundamental Charter of Rights and Freedoms, we find it necessary to include them in light of the provisions regarding the official language guarantees in the proposed Charter. In view of the detailed guarantees regarding official languages and the rights of official language minority groups, with which we concur and we will comment on this question later, the absence of any mention of general cultural rights or positive provisions for the protection of nonofficial minority rights is seen by us to be more than mere oversight. We cannot but view this as a deliberate omission and a sign of over discrimination of a substantial sector of Canada’s population in a document which is to be the yard stick for Canada today and for Canada of the future.
Mr. Chairman, we reject out of hand any formulations or implied constitutional provisions based on the concept of founding nations or races. The only groups which may lay legitimate claim to such terms are the native people of Canada. While we fully endorse official bilingualism as reflected in the provision in the Charter, we resent that the additional dimension of this country, namely multiculturalism, does not appear to warrant inclusion in this Charter.
For nearly a decade the concept or phrase of multiculturalism has been little else than a political football to be snapped, passed and kicked, but mostly fumbled, with no touchdowns and no field goals scored.
The B and B Commissions recommendations which resulted in the Official Languages Act and the social action program, and indirectly in todays proposals of the constitution act appear to have had little impact where this recommendation is contained in volume 4 regarding the so-called other ethnic groups. Yes, there is a policy but no legislation or no statute. Yes, there is a Minister but no department or even an Assistant Deputy Minister.
Instead of an inclusion in the present resolution to the Queen we have heard ridicule, protests over Balkanization and charges of tokenism or patronage. Is this the way we want to have our contribution and input into Canada viewed today and remembered for tomorrow?
Mr. Chairman, we cannot accept the reassurances that we will be somehow favoured with a vague preamble or possible future amendment to the constitution. If the government is intent on enshrining a Charter it must include us today.
We only have to recall the fiasco or the rejection of an amendment to an immigration bill a few years ago. We were then told that a preamble to a new constitution would be more meaningful, that a reference to multiculturalism would be made. In 1972 the MacGuigan-Molgat Committee on the constitution made substantial suggestions for the inclusion of multiculturalism but those recommendations have somehow disappeared. Since then we have had the Pepin-Robarts Task Force, the Ryan Beige Paper which has revived again the discriminatory concept of duality and the founding nations concept of Canada.
Mr. Chairman, our Council advocates linguistic and cultural tolerance and understanding. We reject the fossilized and xenophobic perception of Canadian society based on a static and retrospective view of past privileges or the fallacious concept of two founding peoples who have somehow become more equal than others’ We therefore ask, Mr. Chairman, that this committee give the strongest possible consideration to the suggestions contained in our brief which includes the following points:
One, an inclusion of general language rights or, in our phraseology mother tongue, as a nondiscrimination right in Section 15(1).
Two, an additional clause in Section 15 which would not preclude any programs, laws or activities designed to protect and develop any linguistic and cultural rights in Canada.
Three, a provision that would extend or enable provincial legislatures to extend the status and use of other languages other than English and French.
Thank you, Mr. Chairman.
Mr. Juzukonis: Mr. Chairman, I would like to now comment on the proposed Section 23.
Minority language education rights are basic to the Canadian reality of bilingualism and multiculturalisim. They must be guaranteed in as broad and sweeping a manner as possible, and equally available to all residents of Canada. Those who are already citizens and those who are yet to become citizens.
Unfortunately, the guarantees in Section 23 of the proposed Charter are obviously discriminatory and unduly limited. Limited because it leaves open the possibility of endless debate as to the number required to ensure provision of public funds. Discriminatory because Canadians whose first language learned and still understood is neither English nor French and permanent residents have no right of choice at all.
Mr. Chairman, there is no justification to limit the reasonable demands of French Canadians to be educated in the French language on the ground there are not sufficient numbers in any particular area. French Canadians are justifiably very anxious about their culture and language because of historical assimilation trends in Canada and in North America. We share their anxiety and support their efforts and in particular we would encourage every newcomer to Quebec. whether he be anglophone or nonanglophone, to integrate into the majority official language group.
Constitutions should not be built on political expediencies. Constitutions should also not discriminate against persons who are not yet citizens, except in the right to vote and hold elected office. Section 23 clearly does this by excluding persons who have permanent residency in Canada.
Mr. Chairman, I was born in Canada, my first language learned and still understood is Lithuanian and I am excluded by definition from the right of choice in Section 23. Am I any less a Canadian, that I am given second class status. Are there many Canadians of the nonfrancophone or nonanglophone communities whose mother tongue since first language learned and still understood is the accepted definition of mother tongue, any less Canadian than a person from Britain or a Frenchman who immigrated to Canada within the last five years?
Mr. Chairman, simply what does it take to be a real Canadian. Must we assimilate into one of the majority groups? Is the policy of multiculturalism simply lip service?
Mr. Parekh (First Vice-President, Council of National Ethnocultural Organizations of Canada): Mr. Chairman, I would like to close our remarks by making a few brief comments.
Mr. Chairman, we wish to indicate our support to two sectors of our society who have been consistently discriminated against. They are the handicapped and the native peoples of Canada.
As you have seen in our brief we feel that special consideration of their problems in the constitution is necessary to rectify past injustices and the certain possibility of future discrimination.
Mr. Chairman, I hope that our appearance here before this Committee will not be a repeat of previous experiences when we, the so-called ethnics, or other Canadians, are treated with great respect until the doors are closed and the real work could begin again.
Thank you, Mr. Chairman. We will be very pleased to answer any questions that you may have.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Fraser, followed by Mr. Lewycky.
Mr. Fraser: Mr. Chairman, I think I can speak on behalf of all of my colleagues. gentlemen, that you are indeed very welcome to be here. I want to compliment you on your brief and, keeping in mind the remarks that have just been made, I hope that you are going to get a better response as a result of some of these representations than you feel that you have had in the past at similar committees or commissions.
Could I turn first of all to the announced desire on your part to have the multicultural reality of Canada reflected in this document. Can you be a little bit more specific as to just where you want it and how you think the wording should go and what you think it should say.
Mr. Bandera: Mr. Chairman, we are actually quite open as to exactly where that particular reference could be made. It could be made in Section 15 or in an addition to Section 22.
In our brief we recommend that perhaps an additional clause in Section 15 which would read that the guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada nor preclude any law, program or activity which has as its object the protection of heritage, language, cultural rights and the development of all cultures in Canada.
That is one of the variants that we have considered. We know that some of the other members of our Council who have appeared before your Committee have recommended wording in other sections. Our key point is that we would like to see an inclusion in the Charter of multiculturalism. If we view the detailed provisions for the official language minority groups, and as the B and B Commission has stated, language is the key to culture, then linguistic rights also have the common cultural rights entrenched in the constitution. We do not have this for the other ethnocultural groups, so we are quite open to any formulation anywhere in the Charter that would make a clear and positive reference to the cultural pluralistic society of Canada.
Mr. Fraser: I think I understand you and I certainly agree with you that we are a country made up of people from many diverse parts of the world and with many different cultural and religious attitudes and backgrounds.
Now you speak about how it irritates you to hear of the two founding peoples. I can tell you as one whose background is not English but is Celtic and whose ancestors until we were no
longer successful fought against the English, some of the complaints that you make are also known to others of us who might all too easily be just lumped in as English.
So I find nothing outrageous in what you are saying. I think it makes a lot of sense. it is a concept of respecting our individuality and our backgrounds.
What I am trying to get at is just how we deal with it in terms of putting something down on paper here. We do not have very much time, as you know, and we may need a little assistance from you, after you leave here today, if you could give us some more specific guidance as to where and in what way the words should reflect what you have said. So far as I am concerned if you could give this Committee some assistance I am quite prepared to support the general principle that you are putting forward.
I notice that on page 9 of your brief you are speaking here of the right of a legislature to extend the status, rights and use to any other language other than the two official languages of French and English. I think you quoted the MacGuigan-Molgat Joint Committee on the constitution and I gather, on page 9, that this is a quote and I read it to you:
“The constitution should therefore provide in its section on language rights that provincial legislatures may confer rights on other language groups with respect to use in the legislature themselves, or in government administration, the courts and education in publicly supported schools, the negative phrasing of Article 19 of Victoria Charter is not adequate.
Now, there may have been a bit of a mix-up in that last part of the sentence that you did not intend to be there, or perhaps I am not reading it correctly.
Are you saying then that this document we are dealing with ought to in clear language confer on to the legislatures of the provinces the right to recognize other languages than English or French in their legislative proceedings, in their courts, in the services that a government has to give to all citizens? If that is what you are advocating, how do you see this being implemented as policy and how do you see a legislature faced with the difficulty of choosing which of the languages of its people, not being one of the official languages they would confer this right to.
Mr. Juzukonis: Mr. Chairman, if I could just address several remarks to parts of your question, I would like to preface the remarks by referring to Article 19 of the Victoria Charter which is the direct antecedent of Section 22 in the present resolution.
The reason it was described as negative by the MacGuigan-Molgat Report was that it placed the onus on the appellant to prove that there was customary or legal right or privilege that had been acquired and I would submit to you that there are no customary rights for other languages other than French or English in Canada at the present time.
We suggested the inclusion of multiculturalism or the reality of multiculturalism in a number of areas in the constitution.
One of those areas that we thought might be appropriate for the inclusion of a phrase or a clause was a new Section 15(3) which Mr. Bandera previously pointed out. The reason we have included the addition to Section 16(2) is that many times we have come up against various government agencies such as the CRTC or the CBC and we have said to them, look, we would like the CBC to at least hire 20 producers. You have the technology; you have the equipment; you have the means; and it is not going to cost that much money; and introduce third language broadcasting. The CBC says no, we do not have the right to do that because nothing in our mandate says that we can do anything but broadcast in the English and French languages.
So we have two reasons for including that particular phrase, simply because we want to allow or give at least a weapon that we can use, a means to achieve some of the services that we are looking for in some of the crown agencies, in some of the government agencies, at both the provincial and the federal sector, and if one is to look at the future reality of Canada, there might come a time by 2050 or 2080, 100 years from today, when Ontario might have 3 million or 4 million Canadians of Italian descent, so there might be some regional requirement for some sort of status rights and use for the Italian language.
The same can be said about Alberta or Saskatchewan or Manitoba or any other province of Canada.
Mr. Fraser: Presently, apart from the illustration that you gave, as I understand the situation there seems to be a general agreement among people in this country, except for perhaps some aspect of the present legislation in Quebec, that the language of the people who have come here is respected, and it is certainly not outlawed in any way.
What I am trying to draw from you if I can is just exactly how you want us to address this in this document. For instance, when I read this bit to you in your brief about “may confer rights on other language groups with respect to use in the legislatures themselves” etcetera. I see a lot of difficulty here because we have dozens and dozens of language groups in the country and it is one thing to try to deal in this document with words that will not only recognize the diversity of our collective backgrounds but it will ensure that for instance to have a third language station would not be unlawful, but that is one thing. But where I get into difficulty is to know how to turn your desires into policies and to implement them without getting into a lot of difficulty with discrimination among the various language groups that do not happen to be English or French.
I can tell you that in my riding for instance, if we started to talk about other languages other than English, there is very little French spoken except now by the English speaking children who are going to total immersion classes, but there is a great deal of Punjabi spoken and a good deal of Chinese and of course there are some European languages spoken as well.
I am having difficulty relating the principle which you espouse and which I agree with into the practical application and I am wondering if you could just for a minute or two comment on that.
For instance, just let me give you an example. In Vancouver today, which is the city I come from, just under 50 per cent of the children who are in elementary school come from families where the mother tongue is not English, so there is a practical problem. The education authorities are having a very difficult time finding funds and also competent teachers and enough of them to teach these children English as their second language. It is a very great reality. In my riding now we have a fascinating mosaic of people. What would happen if you came along and said—for instance in Saskatchewan and Manitoba—said, well, Ukrainian will be the official language in the legislature, there seems to be some historical good sense in that; but in British Columbia I do not know what language we would pick, and I do not know quite how you could help us pick it. That is the difficulty.
Mr. Bandera: Mr. Chairman, if I may, the quotes that we took from the MacGuigan-Molgat Joint Committee on the Constitution was to illustrate that the point had been made by a responsible body of people composed of the House of Commons and the Senate who travelled around the country for a lengthier period of time than this present Committee is sitting, who have made serious investigations, who have come up with very, very progressive proposals, and somehow those recommendations were swept under the rug.
What we are recommending here is not for the inclusion of the whole quote as proposed by MacGuigan-Molgat but merely that the constitution should allow provinces, and obviously the onus is on the provinces, the right to extend the status, rights and use of any other language.
Obviously before any problems would go in that direction a great deal of debate would take place in the province. What we want to have in this constitution is a provision which would allow a province to do so. We feel that on a provincial level that issue would be resolved if there ever was a need. The constitution is made I do not think for our current needs but for many, many centuries to come and that situation with immigration in Canada may be such that there will be a situation where Italian may in fact become an official language of the province of Ontario. We do not know. We should not in the current constitution preclude that possibility, that is all we are saying.
The Joint Chairman (Senator Hays): Thank you, Mr. Fraser. Mr. Lewycky, followed by Mr. Lapierre.
Mr. Lewycky: Thank you very much, Mr, Chairman. I would like to commend the Council of National Ethnocultural Organizations of Canada on their persistence. I know they tried for quite some time to get to speak to the Committee so I am commending you on your persistence because it has certainly been very worthwhile for me to be able to hear some of the positive suggestions that are being brought forward.
I especially like your introductory reference to the fact that the constitution must reflect the Canada of today and the
Canada of tomorrow and also you forced us to think in terms of not only a founding peoples but also a building peoples.
My first question deals with your view of Canadian society and how you feel the constitution fits into this particular view of Canadian society you may have. You have made reference to the statement by our Prime Minister on Friday, October 8 of 1971, where he spoke about the announcement of a policy of multiculturalism within a bilingual framework and you mention that historically we really have not had any sort of statutory recognition of this element.
So I was just wondering if you could elaborate a little bit on your view of the Canadian society and how you feel this constitution would address this particular view that you have.
Mr. Leone: Already it has been explained by Mr. Bandera about the need of the inclusion of multiculturalism, and we should speak clearly.
For the last 10 years the principle of multiculturalism has been endorsed by governments, by all the reports just presented to you, but we have seen that governments, political parties, are pulling back. So we see the danger that the Canada of today, this multicultural Canada is going to again disappear in this format of Canadian society.
Now, we naturally, see Canada, as we see Toronto, the big cities, cosmopolitan, pluralistic—a multicultural society. We would like to have a constitution which would permit us to express our own cultural heritage and be able to live in a society where through understanding and tolerance we can become an effective part of Canada.
This is our goal. This is the point I am trying to make. We see the constitution as a defence or protection for the future.
We have demonstrated to you that discrimination still exists, and the participation of our people in government is still at a minimum.
With a new constitution we would feel—all Canadians would feel as first class citizens.
Mr. Lewycky: In relation to multiculturalism, you gave some historical reference in regard to the States, and on page 2 you make the statement that minorities are better protected with a charter, backing up your idea of having an entrenched charter of rights; I was just wondering this, whether you did have any other illustrations where, historically, that particular statement can be borne out.
Then, looking at the whole area of rights and so on and so forth, there was a suggestion made that we should somehow be tied into international agreements, international bills of rights, and I was wondering whether you felt there might be any problems in terms of some of these agreements changing and at the same time we have enshrined something and tied ourselves into an international agreement in our constitution, and what effect that would have in terms of our own view of Canada as a sovereign nation, if we are tied into some other standing international agreement?
Mr. Juzukonis: If I may address the last part of your question first, I would like to point something out to you. I am sure you are probably well aware of it. We often refer in Canada to the example of the United Kingdom, where there is an unwritten constitution and the rights are protected by custom, tradition and, usually, common law.
Since 1966, I would go so far as to say that the United Kingdom has had an effective bill of rights.
When, after the signing of the European Convention, it allowed individual persons to take cases to the European court, in many cases discriminatory legislation in Great Britain has been overturned because of the actions of that court.
We are simply suggesting in including a provision which would allow the invocation of international agreements, first of all, only to allow the invocation of those agreements which have been ratified by Canada, and if there were any changes which diminished rights or were more restrictive, we would hope that Canada would not ratify it, since we believe that Canada is a truly free country.
When international agreements would be invoked, we would fall into a pattern, on the same lines of the United States where treaties are the law of the land, or in other countries of the Western world. and allow a wider expression of human rights, a much more detailed expression of human rights, but not subject to the particular limitation that we impose upon them in a narrowly drafted constitution.
We simply want Canada to live up to its international agreements. Canada has made those commitments, it has signed the Optional Protocol, the International Covenant on Civil and Political Rights, where it says that you could take us to a public forum and condemn us if we have not lived up to those rights.
So, why can we not give those same rights to citizens of Canada, so that we could defend ourselves in the courts with the international covenants that Canada has ratified?
Mr. Lewycky: On page 10 of your brief, you make some reference to the whole area of language and a limitation. You quote from the B and B report, emphasizing the fact that language is the key to culture.
If I can just quote that one sentence on page 10:
Moreover being sensitive and aware of the justified needs of French language minorities outside of Quebec, the Council feels that the reference to the concept “where numbers warrant” may prove to be a basic limitation on the rights of all Canadians.
Can you elaborate on that, and are you suggesting that the phrase “where numbers warrant” be deleted and some alternative proposed? Could you just clarify that particular aspect of the matter for me?
Mr. Juzukonis: We have already stated in our oral presentation that many of us fear the prospect of unceasing litigation to define exactly what the term “where numbers warrant” means, as to how many people warrant the provision of public funds. Is it 10 per cent, 2 per cent, I per cent, 90 per cent, 95 per cent?
We suggest—and I think this is probably a recognition of the justification, particularly of the French Canadian minority outside of Quebec—that there would not be unreasonable use of that provision to provide schools in the French language for those citizens of Canada who desire it.
Mr. Lewycky: In your brief, on quite a few times, you talk about different apprehensions you have, different fears.
I was wondering whether you could help me to understand a bit what your view is of Canadian society as far as, say, the aspirations of, well, even the English and the French-the French obviously, as we are aware, do have certain fears about their own language and just the fact that Bill 101 was introduced in the Quebec legislature speaks to this, so what type of aspirations do you see being reflected in the constitution, let us say, for the French, that would allay some of the fears that you do have, but at the same time would allay some of the fears the French might have that they might not be adequately represented or some of their own hopes, goals and aspirations would not be dealt with?
Mr. Bandera: Mr. Joint Chairman, we stated in our brief that we fully endorsed the official language provisions as set out in the proposed Charter.
I think that language provisions as such are in fact a guarantee, because, with the language provisions, you have the whole educational, the whole media system, set up which allows a given culture to flourish and develop.
With language guarantees for the official language minorities, particularly for the French outside of Quebec, I think they will have a much better chance to hold their own.
We do not have any fears about the Quebecois element ever drowning in the North American sea. Quebec with its population, with its demographic base in Quebec, a population which is much larger as a francophone society than many other countries who are members of the United Nations, the cultural network set up in Quebec, the music industry, the media, the television industry in Quebec, is uniquely Quebecois and does have a whole system of cultural preservation.
Obviously, there is not threat at all to the Anglo-Celtic groups in North America, in Canada. I do not think they have to be scared of anything.
Perhaps the Celtic groups, and we can refer back to the CBC ban on the Gaelic radio program in the 1970’s in Nova Scotia, of the banning of the Ukrainian language program in Winnipeg when the CBC took over the station: there are certain fears. We do not see any guarantee to date. There is not a single statute of the federal government; only one statute of the provincial legislature—Saskatchewan—which has given any recognition to multiculturalism; and we have this constitution before us which is supposed to determine the future of this country.
We have no illusions that a preamble would solve the problem. We do not want to listen to promises that somehow in the preamble there would be some reference to the diversity.
We want it included in the Charter. We think, from what we have described today, that there is room for protecting these minorities.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Lapierre: Thank you, Mr. Chairman.
Gentlemen, it gives me great pleasure to welcome you here.
I think your presentation brings us back to certain weaknesses or omissions in this charter but concerning your specific recommendation, in all your interventions you seem to prefer the idea of multiculturalism to that of Canada’s linguistic duality. You were mentioning before that your vision of Canada was that as seen from Toronto where there are several ethnic groups but of course I, as a Quebecer, have quite another perspective.
For example, in the proposals you make hearing on Clause 15 where you ask us to add as nondescriminatory criteria the expression, “mother tongue”, do you perhaps not think that at that point, to all practical intents and purposes, you are leaving by the wayside the provisions of Clause 23?
Mr. Juzukonis: Exactly.
Mr. Lapierre: Personally, I attach great importance to Clause 23 and I was quite happy to hear one of the members of your group say that you shared the concern of the francophones of this country and you know very well that certain provisions of Clause 23, where there is a question, for example, of Canadian citizens, that is by indirectly obliging, through Bill 101, the newly arrived immigrants in Quebec to adopt the language of the majority, were inserted to calm the fears of many francophone Quebeckers vis-a-vis the massive arrival of immigrants who, contrary to what is done everywhere else in Canada, in all the other provinces, tend to go towards the language of the majority while in Quebec, in the past, as you know quite well, the immigrants went towards the language of the minority. Do you not think that it is quite legitimate for a government who does want to respect the linguistic duality of Canada to put that sort of clause in its future Constitution?
Mr. Juzukonis: Mr. Joint Chairman, we are the first to admit it. Historically, immigrants were a threat to the French speaking Quebeckers. There is no question in our minds, because, yes, they did integrate into the anglophone element; but they did so for very complex reasons. They can be all boiled down to simple economics: the language of business and of work was English; and immigrants who come to another country are basically looking for some sort of upward mobility.
They chose the English route because they thought that would be the avenue to upward mobility. Because of that fact, Quebec introduced some coercive legislation to force immigrants to learn French and to use French as the language of work.
But I would suggest to you that the situation has now changed in Quebec and that the face of the society is chang-
ing; that, first of all, it is without any question in our minds that the language of work in Quebec must be French, and not only the immigrants must learn French, but the anglophones in Quebec must also learn French. We have no qualms about saying that the French outside Quebec must learn English, but we do not want to say the same about the English in Quebec.
But that change, or integration, into the official language of the majority of the province of Quebec must take place through positive programs, rather than through the coercive elements of Section 23, which we feel is basically discriminatory, not only to those in Quebec but to those outside of Quebec.
I do not have the right to send my children to a French language school, because my first language, as understood, and still spoken, is Lithuane and not English or French. I do not have that right or choice that another citizen might have.
We would suggest to you that the fear, because of the discrimination which has taken place in the past, that fear should be put aside now, and we should welcome and open a positive approach to the question of language in Quebec.
Mr. Lapierre: I thank you for your comments but there is one thing that I certainly share with you and that is the idea that “where the number is sufficient” it is a restriction of individual rights and I think that your recommendation that in Clause 23 that should be taken out is very interesting.
If we return to your presentation on Clause 10 concerning legal rights where you hope that will be added in the right to receive legal aid freely everywhere in Canada for people who do not necessarily have the means, did your group try to find out who would be paying for that legal aid?
Mr. Juzukonis: Yes, Mr. Joint Chairman legal aid exists at the present time under the jurisdiction of the provinces. It comes to a question of principle for us. It is not a question of some sort of program which is necessary. We endorse the Charter of Rights and Freedoms because we believe that is the best way to protect human rights in our Canadian society.
But how can we guarantee that protection, when the poorest elements of our society—who are usually the most discriminated against—do not have the same access to legal council that the more well to do elements of our society have, It is imperative that they be guaranteed that same access to legal counsel that others have available to them.
The only way we can guarantee that is to include a provision for legal aid. In our case it is a question of principle and not of program.
Mr. Lapierre: There was something said about the CBC before which perhaps might have created the impression, in the general public, that in Canada radio and television broadcasting could, in fact, be done only in English or in French.
I would like to point out that even in the west some stations do broadcast in other languages than the official languages and the CRTC does allow the setting up of private stations which broadcast in different languages thus recognizing our country’s multicultural aspect.
Now, for Clause 16, you recommend that the legislative assembly should have the power to improve the status, the right and the use of all other languages.
You know very well that Clause 16 does not prevent legislatures from doing that. You were giving the hypothetical example of little Italy, in Ontario, in 2025. Presently, there is nothing in that Constitution which would prevent the Ontario legislature, in such a hypothetical situation as you have described, to improve the status of Italian but I would like to have you note that we are hoping for at least, as a minimum, that French and English be recognized and I am convinced that there will then be a possibility of opening our hearts to further abundance but there should be a minimum at the outset, in my opinion.
Mr. Bandera: Mr. Joint Chairman, we all share your concern and we would like Ontario to become officially bilingual.
The reason why we posed it was that it was a provision for the right of a legislature to extend programs other than the ones which are now incorporated in the Charter beyond the terms of reference of the Charter.
We felt this was an inappropriate place to also include a reference whereby a legislature also had, the right to extend the right to other languages.
We do not see a necessity for the initial points to be made in the Charter as proposed today, but since it is there we felt that this would be the place to include it. If the provinces today have the rights, we do not see the necessity of having had that point included there.
I would just like to come back to the point you made about radio and television. Of course we have Johnny Lombardy and we have multilingual television, but all in the private sector. The CBC, which is tax supported by our money as well, one third of Canada’s population, our money as well, one third of Canada’s population, our tax dollars, refuses consistently to have anything to do with multiethnic or multilingual broadcasting.
Two weeks ago it was announced that the CBC would be establishing second networks, both in the English and French language, to provide special minority programming. But what minorities? Minorities who listen to concerts, operas and to ballet, and yet our minority demands and requests and appeals have been consistently turned down.
Of course, in the private sector you do as you please but do not touch our public institutions with your demands. That has been the message that we have received from the CBC.
Mr. Juzukonis: Mr. Chairman, first of all the inclusion of mother tongue in the non discrimination rights in Section 15(1) was in direct response to Section 23.
Because we felt it was so obviously discriminatory we felt that we had to have some sort of protection against the possibility of future clauses or future legislation of that type.
What we would suggest is something to the same effect as was presented before this Committee by the Ukrainian Canadian Committee where a modification of Section 23 should read, we would suggest, and by no means am I suggesting the language is rigorous, that every citizen of Canada and every resident of Canada should have the right to choose his or her language of instruction. Obviously we are talking about the official languages.
We do not believe the unity of Canada or the interests of any cultural group or any cultural community or any language
community is served by the use of coercive techniques to guarantee that cultural community survival. We believe that what is necessary is positive actions, recognizing the historical trends that have created this anxiety within Quebec; and I think it is very clear the historical trends and the economic situation in Quebec where the domination of the capital industries and of the major industries was by anglophones forced not only immigrants but also French speaking Quebeckers to learn English if they wanted to seek any type of improvement in their lives.
We think and hope that the economic situation is now changing, because no matter what the course of techniques we might use, if the societal situation of Quebec is such that English is required for upward mobility, the eventual disappearance of the Quebecois as a separate cultural entity is guaranteed.
In the same way, I would like to just emphasize that we respect—and again there is not point in discussion among our Council as to the rights of French-Canadians outside of Quebec to choose French as the language of instruction; this is why we included our apprehension about the phrase “where numbers warrant”.
Canada is a bilingual country. We recognize, fully support and endorse that. In fact, if Canada was not a bilingual country, it is very doubtful that there would ever be an officially proclaimed policy of multiculturalism. I think that is clear to everybody.
The French have always regarded the non-Anglophone, non-Francophone ethnocultural communities as being some sort of a threat, some sort of a divisive element that the anglophones are going to use to diminish the role of the French in Canada.
December 10, 1980, Miss Desantis, Mr. Rae, Mr. Irwin, Mr. Sciascia, Mr. Lapierre, 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. 23, p. 21 (click HERE)
Miss Desantis: But this is where Senator Asselin’s suggestion can be taken into account. He says that the federal government and the provincial governments should work together.
Well, I go back to what I said when I made the presentation.
We seem to be spending so much time on Section 23. The reason why I, at least, am here, and the reason why I encouraged other people to write this document, is that most often when there was talk about the constitution, there was talk about English and French forever. There was no mention of anything else but English and French.
So, I said to the people who are here beside me and to other people, “Well, for heavens sake, I am a Canadian and I belong in that constitution.” The fear that certain people have of mentioning the fact that I am a Canadian I find incredible. It is unbelievable!
Now, I want my children to be able to understand Canada and to be able to be part of Canada. If I am a Quebecer I have to be able to speak French, but not only speak French, but to understand what French Canadians are. That means part of my education has to include French Canada. What is its history, its culture, traditions and religion.
But if I want to be a Canadian, I want to be able to communicate across the country, and I have to learn how to speak English; otherwise, once I cross that border, I cannot communicate with anyone.
But when we talk about the ideal of bilingualism, we are trying to say that across the country if we are going to have a vision of Canadians we all came here from other countries to try and build a country together regardless of our cultural background, and we decided that there were going to be two languages which we were going to use to communicate with each other, otherwise we are going to have 21 Tower of Babel as has been mentioned by other people, and then I think that the provinces and the federal government have to examine exactly what kind of Canada they want. That is when the provinces, if they really want to keep up Canada, where we all belong, are going to try and implement this kind of program with respect to education.
Mr. Rae: Yes, but what you are suggesting is that you would put general language in the constitution about the fact that bilingualism is a good objective and leave it up to the provinces as to whether or not they implement that objective?
Ms. Desantis: Well, we have to be realistic.
Mr. Rae: Yes, but if I could just add one other point before my time rapidly disappears.
Ms. Desantis: I am sorry.
Mr. Rae: There is one point and then one question.
The point is that I would ask you to reflect on the fact that bilingualism is a reality in those communities, in those parts of Canada where people of different linguistic backgrounds have not only to learn something, education in the abstract, but they have to work and function in that language and let us face the reality, there are not too many cities and communities, if we look at the whole of Canada, where one needs or one has to speak French in order to carry on, so I would like you to just reflect on that fact for a moment.
The second question I have to ask you, where you refer to the importance of the dimension collective, collective dimension of linguistic rights. One of the things that is frequently mentioned in discussions in Ontario, and elsewhere in Canada, too, is the collective rights of new Canadians to what is called heritage language questions.
Has your group given any thought to this element since you quote Jefferson and others to say that linguistic freedom is essential for one’s individual identity? Do you have any reflection on whether or not it is possible or realistic for us to attempt to, in a federal way, to encourage or to protect what are called heritage language?
Ms. Desantis: If you include in a bill of rights the right that all the ethnic groups have to preserve their culture and their heritage, in one way you are also including that. In our recommendations and also the document itself, you mentioned . . .
Mr. Rae: I do not remember. Is it?
Ms. Desantis: Yes. So language is part of our culture.
Mr. Rae: Yes, I agree with that.
Ms. Desantis: And if it is part of the bill of rights then there is a protection to it.
Mr. Rae: And that is adequate in your view?
Ms. Desantis: Well, I think if the right to speak Italian is not going to be taken away from me, I mean if it is enshrined in the bill of rights, I would find that adequate, yes. I came to Canada not to recreate Italy.
Mr. Rae: No, I appreciate that.
Ms. Desantis: I came to Canada to be a Canadian, but at the same time to be able to maintain my culture, my tradition and my language.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Rae. Mr. Ron Irwin.
Mr. Irwin: (Speaks in Italian.)
Anyway, I am very pleased that you are the first multicultural group who have come before us who have recognized the English-French character of the nation and want to build on that character. and I am very pleased that you are forcefully putting Section 133 across.
Out of curiosity, why are you interested in 133 being imposed on Ontario? That really does not affect you living in Quebec?
Mr. Sciascia: Well, if we want to put into effect what we preach. which is bilingualism, then we have to start implementing that policy somewhere, and I think that if we treat the francophones in Ontario the same way that the anglophones are treated in Quebec, then I think what would be a good start.
Mr. Irwin: Splendid. Now, on the Rizzuto amendment, in simple terms. I understand as it affects. for instance, Senator Rizzuto, he is a Canadian Citizen, he has been here for many years, yet he is unable to send his children to an English school if he wants to. and that under his amendment, if there are sufficient numbers, he as a citizen would be able to do that; is that correct?
Mr. Sciascia: Not if Senator Rizutto has not received English education. Then he would not be able to send his children to English schools.
However, if one of his children were already enrolled in an English school. then he would be able to send his children to English schools.
Mr. Irwin: So you have narrowed it down. He first has to be a Canadian citizen ?
Mr. Sciascia: That is right.
Mr. Irwin: He has to have gone to an English school himself?
Mr. Sciascia: Or one of his children has to be enrolled in an English school for the other ones to be able to go to that school.
Mr. Irwin: So they can catch up, so they are all going to the same school?
Mr. Sciascia: That is right.
Mr. Irwin: So it is not very earth shattering what you are suggesting, I think it is very reasonable.
Mr. Sciascia: We must face reality. We come from the Province of Quebec, therefore, we have to be very reserved and I think that would satisfy the demands of the Italian community.
Mr. Irwin: How many Italian Canadians are there in Quebec?
Mr. Sciascia: We estimate anywhere from 250,000 to 300,000.
Mr. Irwin: Now, you have indicated that they started coming there around 1880.
Ms. Desantis: We came before 1880.
Mr. Irwin: Is that right?
Ms. Desantis: Oh, yes. I leave that to Tony.
Mr. Irwin: I would like to know a little bit of the history. I know the history of why they came to Ontario but I am not sure that the people of Ontario understand why the Italians immigrated to Quebec prior to 1900?
Mr. Sciascia: Well, if you wish we can give you some reference to that.
An hon. Member: Christopher Columbus.
Ms. Desantis: No, not Christopher Columbus, there are others.
Senator Tremblay: Giovanni Cabot.
Mr. Sciascia: In fact, a large part of the regiment Salière-Carignan which was brought here to defend New France was made up of Italian soldiers. [Text] Here we are talking about a heck of a long time ago.
Mr. Irwin: You know, there is some history that when Giovanni Cabot landed and he met the first Indians, they were calling codfish, bukaluk, which is Italian for codfish. So maybe the Italians got there even before that, they just did not want to tell them where the good fishing spots were.
Now, on the preamble, why is it important to you that we have a dressed up preamble? Now, we have had two versions, and I think it was the Ukrainian or the Polish Group that said it made no difference to them what was said in the preamble, it was what was in the body of the document that was important because that is where the rights were. You are indicating really nothing in the body of any substance, but you are very interested in the preamble other than language, away from language?
Miss Desantis: I am sorry but we also want something in the Bill of Rights which is very similar to what the Ukrainiens asked for, I believe. They wanted a section 15(3), that the right to your culture and your heritage be enshrined in the Bill of Rights but there is a necessity for a preamble because the preamble gives the tone to the rest of the document, it tells us what Canada is and what we aspire Canada to be.
I want to be part of Canada, and I am sorry, but sometimes I get the impression that I have to fight real hard to make somebody believe that I am part of Canada, and I do not think I have to beg to acquire a right to participate in the history of Canada.
The preamble to the constitution can say that Canada is a bilingual country, that we want to make bilingualism effective across the country and that Canada is no longer the Canada it was in 1867 because since 1867 people have come to this country from all corners of the earth and they have decided that they are going to come here and to work together, and 30 percent of the population presently is not english or French. We want that to be recognized.
Mr. Irwin: I quite agree with you. I sometimes believe me should have hired a writer or poet to do some of the drafting rather than the lawyers but I wanted to hear you say that.
Mr. Epp: Hear, hear.
Miss Desantis: I think we make that comment. [Translation] We say that a computer could have written this document.
There is an emotion to being a Canadian. I think some of you must be looking at me and saying: well, she is a real Italian, very passionate, very emotional. Well, I am very proud that my parents decided to come to Canada, I am very proud to be Canadian and I want other Canadians to share that same pride that I have.
Mr. Lapierre: […] The part I have trouble grasping is related to bilingualism. You know, there are always people who think that we want to force French or English “down their throats”, as they say. In fact, federal policy never really intended to make Canada a country where every citizen would be bilingual, but rather a country whose institutions would be bilingual.
The statements and vision of the Prime Minister were under discussion. I do not think we ever went that far. It may be a dream or an ideal, but I do not think at the present time that there has ever been any question of creating a country where every citizen would be bilingual, although I do find your suggestions fairly interesting.
Several groups have asked us to entrench the multicultural character of Canada, but I would like to have your suggestions since Section 22 mentions that multicultural character, although I would say, it is in a negative way.
Have you had the time to consider Section 22 of Section 15 and to prepare an amendment? I do not know in what paragraph you want to have that multicultural character entrenched, but did you prepare a text towards that end?
December 15, 1980, Mr. Oberle, Professor Bongart, Mr. Waddell, Mr. Kiesewalter, Mr. Grenke, Mr. Mackasey, Mr. Epp, Mr. Knodel, Mr. Lapierre, Mr. Friesen, 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. 26, p. 45 (click HERE)
Mr. Oberle: The question of multiculturalism is an important component of your brief and there again may I say that some of the people that have written to me and called me are saying: why is it that Canada being a model in the world, really, we are not like the Irish and the Lebanese, we do not fight amongst each other or with each other, we are a model to the world in terms of the expression of many cultures, all Canadians have benefited from the rich cultures that have come to this land from the different parts of the world. Why is it that these changes are necessary at this point in time? Why do we not build on what we already have and strive to perfect it?
Do you fear that the concept or the idea of multiculturalism as a result of this resolution has been pushed in the background
as most people feel, and do you see that multiculturalism indeed could survive if we proceeded with this resolution as it is proposed now?
Professor Bongart: Mr. Oberle, Mr. Chairman, if I may answer that question, I do think 1 believe very strongly in the concept of multiculturalism and, as you probably are aware of, the federal government pronounced the policy of multiculturalism in 1971 and ever since that time, from 1973 on, the multicultural council was formed, it has become an ingrained part of our awareness, I think, in the ethnic community in Canada from coast to coast, and what we would like to see in the constitution is something that takes it away from the majority of the day in Parliament and puts it in a constitution al framework, and as I said in my opening remarks that would have something that is general enough and yet is still to the point where it does say that all Canadians are guaranteed a right of choice in the preservation and development of their cultural and linguistic heritage. A phrase like this or some thing to that effect would then put it on the level of a guarantee, which then would remove it from the favour or disfavour of the Parliamentary representation of the day.
Now, if I may, Mr. Chairman, refer to Mr. Oberle’s remarks with regard to the value of our Canadian multicultural concept, I might point out that not too long ago Sweden has adopted the Canadian concept almost in its entirety, to a great extent anyway, and made it its own Swedish concept of how to deal with the several questions they also have.
I might also point out that the West German government, due to the increasing amount of workers in Germany from other countries, from the European Common Market, and so on, that they are very impressive and looking at our concept, and 1 do think that Canada is leading the world in this concept, is giving signals as to the possibility and here is a political reality that can be realized, and I do think that the ethnic communities in Canada would like to have this guaran tee in the constitution that makes it possible to continue and extend that which it has already achieved in the relatively short time from 1973 to the present time.
Mr. Waddell: I understand there are certain similarities.
I was very pleased, Mr. Chairman and members of the delegation, that you pointed out in your oral brief and you point out in your written brief that I have in front of me that there are over 1.3 million Canadians of German origin in Canada, and that in a number of provinces German Canadians are second only to the anglo-Canadian majority.
You say further on page 3 of your brief, by a wide margin the second largest group of Canadians in my province of British Columbia are of German origin and you say we are Canada’s largest group of neither French or British origin and I must say, on a personal level, in my constituency in Vancouver I always assumed that it was Italian people or Portuguese people, and so on, that were the other cultural group and when I looked at the figures I was surprised to see that it was really Canadians of German origin and you reflect this in your brief.
I want to ask you specifically with reference to multiculturalism. It seems to me that we have three choices in dealing with it: the first is there can be no mention at all in the constitution; the second one could be that there is a mention in the preamble of a constitution. Now, I do not see any preamble here but there could be a mention in the preamble. Now, that could be some sort of affirmative guidance to us, a kind of let-us-show-the-nature-of-the-country-we-are, but perhaps of no legal authority; and the third possibility would be that it could be mentioned in the body of the constitution, let us say in Section 15 here, which would give specific legal rights.
I wonder whether you would agree with me that those are the choices, there may be other choices, and which choice would you prefer?
Mr. Kiesewalter: If I may answer, I think we would prefer to have it in the body of the Charter that you have in front of you rather than in the preamble. The preamble, to me, would be more of a statement of intent.
I think our Ukrainian friends recommended an addition to Section 15 and it reads as follows:
“Everyone has the right to preserve and develop their cultural and linguistic heritage.”
I think this would be quite acceptable to us.
Mr. Waddell: That would be a clause in addition to Section 15. I will just read Section 15(1):
15.(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, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.
So we are really dealing with Section 15(1). I wonder would you advocate that we perhaps add in that Section . . .
Mr. Kiesewalter: Subsection (3).
Mr. Waddell: You say we should add a subsection 3 rather than putting in Section 15 (1), for example, mother tongue, or a right to education?
Mr. Kiesewalter: This would be then a matter of legal discretion or getting lawyers to properly draft it. We basically agree with the Ukrainian proposal for an additional subsection (3).
Mr. Waddell: All right, just so I have got that clear and without going into lawyers language, heaven forbid, what do you mean by multicultural rights? If I asked you to be very
brief and say what do you mean by multicultural rights, how could you say that in a paragraph or two?
Professor Bongart: That is a big order but I will try.
Multicultural rights is based on the respect, 1 would think, for the rights of the other Canadians. Multicultural rights have their basis in recognition of the rights of all other Canadians and in the will to share your ethnocultural heritage, that which you have inherited, with all the other Canadians, and to make sure that there is a possibility of sharing, there is a possibility of freely exchanging without discrimination and without being hindered in doing so.
So you asked for one paragraph, I think the bottom line would be to share your heritage, your ethnocultural values, with the rest of your fellow Canadians and expect the same from all the other groups.
Mr. Waddell: Well, I took two things from what you said, if I might. 1 took the positive side as sharing your heritage, being proud; in my community of Vancouver-Kingsway we have Canadians of German speaking origin, and we are; and a kind of negative idea, if I can put it that way, that there should not be discrimination in law.
I wanted to ask you specifically what happened around World War II or shortly thereafter in British Columbia, during the War, to Canadians of German origin in the area of Vancouver and in British Columbia? Could you answer that shortly?
Mr. Grenke: I am not really that familiar with World War II but I can tell you what happened at the time of World War 1.
One thing, at the time of the sinking of the Lusitania rioters in Victoria went through the streets smashing windows, they went to the German Club and broke the windows and so on and so forth.
After the war the problem became not only that of fighting Kaiserism, but this was somehow synthesized with fighting Bolshevism, and the people, the war veterans who at the end of the war went out to fight the Wobblies, also chose to do their share in beating up Germans and so on, so forth.
Mr. Waddell: Well, I am told that the Japanese Canadians were here and told us a similar story during World War II. There has been some suggestion that this was extraordinary, that it only happens in time of war, not in peace time, but I note the War Measures Act 10 years ago which now historians say was wrong and unnecessary, and I wonder if your organization has taken any position with respect to the use of the War Measures Act in peace time?
Mr. Kiesewalter: We have said in our brief that we find Section 1, with the exemption it proposes, quite unacceptable. I think this would cover that. If you have entrenched rights they should be entrenched without the limitation in Section 1.
Mr. Waddell: I see and I agree. I just wanted to ask you perhaps one last question. You make reference to hate propaganda
in your brief, the difficulties of any community that is faced with that kind of evil. I understand that the Criminal Code has some protection against hate literature and Iwonder if you think that is adequate or whether you would ask that there be some additional provisions in the constitution document.
Are you in a position to be able to comment on that? I know it is a tough one.
Mr. Grenke: May I first of all add in relation to World War 11, during World War II the Germans were not treated as badly as the Japanese, the prime reason being that because of World War II. Germans tended to shed their identity to a great extent and the main people who suffered during the Second World War were the members of the Deutsch- Canadeschr Aabeiter and Famer Verbend, which was a leftist organization, and the members of the Bund. Now, these peoples, many of them were interned and so on and so forth, but generally the German community as a whole tended to be left alone.
Regarding hate propaganda, this is really a very difficult issue and it affects us not the same way as it affects many other communities. It affects us largely in such films as Holocaust, Hogan’s Heroes and so on, so forth. Now, as I understand it, the Broadcasting Act does not allow or permit an ethnic community to challenge a certain program, the broadcaster can present what he wishes but at the same time he is required to, and I will read what I was told by Bill Howard of the Legal Branch of CRTC, that the station is obliged to provide the opportunity for expression of different views on matters of public concern. Now, this does not apply to drama as yet, it applies largely to public opinion programs.
Now, what we would like is if, somehow, in someway, if a program is presented which presents us in a negative view, that laws be passed which enable us to present our point of view on that particular television station which presents a program which stereotypes Germans in a negative way.
Mr. Waddell: I will finish with a comment, Mr. Chairman, if I may, namely that I appreciate that answer, because it is a growing difficulty. We have seen it with Canadians of Chinese origin with the W-5 program, and an apology coming from the program; we have seen it with Italian Canadians with the Mafia references encompassing the whole community. It is the first time I have heard it expressed by the German Canadian community. I am very grateful, hearing your comments tonight. I know it is not an easy problem to solve, but I am very grateful that you have brought it up.
The Joint Chairman (Senator Hays): Thank you. Mr. Mackasey, followed by Mr. Epp.
Mr. Mackasey: Thank you, Mr. Joint Chairman.
On behalf of my party I would like to welcome such a distinguished group as we have here this evening.
Reading your brief 1 get the impression that you have some ambivalence about the enshrinement of a Bill of Rights as proposed in the Charter. Could you elaborate one way or the other?
Mr. Grenke: We believe that a Bill of Rights is a great thing. However, we feel that in trying to create a utopian society through bills of right we may end up doing more harm than good.
Mr. Mackasey: May I stop you for a moment there. I would like to develop a theme here, if 1 may. Forgetting your reservations about the bill—and I share your concern that maybe we are creating expectations which we may not be able to meet and 1 will talk to you a little later about that.
But assuming for a moment that your reservation about a limitation clause were removed, or there was wording of such nature that a greater onus was placed on the courts than on the legislature, if you had no reservations about Section 1, would you feel more inclined to support the concept of a Bill of Rights being enshrined?
Mr. Kiesewalter: Mr. Mackasey, how would you deal with the court cases? Which courts? We are not familiar with any provisions being made for dealing with the problems that may arise. Who is going to apply the law of the land?
Mr. Mackasey: Well, eventually, people who feel that their constitutional rights which are enshrined are being infringed upon by some authority, can go all the way to the Supreme Court, and the Supreme Court will be dealing not with a Bill of Right which is not enshrined, such as Mr. Diefenbaker’s laudable piece of legislation, but with rights which are funda mentally enshrined in the constitution. It will then be for the courts to determine whether the case comes within the defini tion or intent of the constitution.
If you are asking me who would enforce it, then it would be the Supreme Court.
Mr. Kiesewalter: As it is now, not enlarged or anything of that sort.
Mr. Mackasey: Well, as you know one of the weaknesses of the present Bill of Rights of Mr. Diefenbaker is that the Supreme Court can, and has, ruled that it does not supersede any other piece of legislation, with one exception—one ruling.
Surely, once something is enshrined or spelled out in the constitution as your individual rights, as opposed to the common law system—and, if I may say so, I am a little concerned and perturbed, because I respect your group when you realize, that representing the riding of Lincoln I have had a chance, as you know, to discuss this matter for many, many months. It has been fascinating to get the multicultural views of that community which I was not always exposed to previously when I was in Quebec.
But it seems to me that, with Canadians of German origin who have been subject to the type of discrimination which you have touched upon in your brief, the atrocities which were committed against Canadians of German, Ukrainian, Japanese background well before World War I it would seem to me that you, more than any other group, would want to see your individual rights enshrined in the constitution. I am a little
perplexed by your reservation. Is it because of the drafting or its limitations?
Surely, philosophically, you cannot be opposed to it.
Mr. Kiesewalter: The atrocities which have been committed against our groups were in countries which had entrenched rights.
Mr. Mackasey: I do not want to leave you with the impression that the entrenching of rights will eliminate these atrocities, anymore than it could eliminate discrimination. But all things being equal, if you had the case to pursue, after you felt you had been discriminated against individually or collectively, surely you would want to go to the Supreme Court armed with entrenchment in the constitution rather than relying on the common law?
Mr. Grenke: The example which I gave you, they appealed to the President; and because the society was intolerant the Supreme Court did not help them at all.
Let me give you another case. In April 1918, a mob lynched R. H. Praeger for supposedly making disloyal remarks during an address. He was dragged out of court where he had been brought and eventually lynched.
Now, let me give you another case. A man by the name of Arnold T. Drumheller was acquitted by a court after shooting Tim Blair, one of twenty who broke and attacked his farm and harassed him. In this case the man was better protected by common law than the man who was in the American situation.
So it is society—the right atmosphere—which creates human freedoms, not law.
The Russians possibly have one of the most liberal of constitutions, but they are really one of the most enslaved societies.
Mr. Mackasey: The Russian constitution does not give you the right to court. Ours will, and that is the fundamental difference.
Mr. Epp: It does.
Mr. Mackasey: Go ahead, you do not have to listen to interruptions at all.
Mr. Grenke: I was going on to add that it is a particular environment at a specific time which seems to determine the rights which individuals have. It is not any legal system. This has been our experience.
Mr. Mackasey: The point 1 am trying to make is that I am not disagreeing with your right to differ with what we are doing. What I am trying to do is to find out what is your opinion one way or another.
Mr. Grenke: As I said before, we feel that if we are going to have a Bill of Rights we should certify that it will be intelli gently drafted, that the people who draft it take cognisance of what they are doing, and realize both their limitations and their advantages and present us with a Bill of Rights.
That is all we are saying.
Mr. Mackasey: What you are saying is that you want one that is perfectly drafted.
Mr. Grenke: As perfectly as possible.
Mr. Mackasey: And that is the purpose of these hearings, to weigh contributions such as your own and to take them into consideration and to reflect it in better drafting.
Mr. Grenke: We see our role as trying to help you do this.
Mr. Mackasey: You are doing it well.
If I were the belligerent type, which I am not,—and I would suggest to Mr. Orberle that the fight amongst the Irish is their own business and one which is fought on very historical grounds, based upon language, religion and things which only the Irish can understand.
But I do not pretend to be an expert on your culture. When I first came here in the 60’s one of the things which perplexed me as a back bencher was a reference to our Committee, set up to study the elements that were adding to dissension in this country, tension, and a lot of us were very concerned; the Commission was called the B and B Commission—Bilingual ism and Biculturalism; and I have to say that in defense of my Prime Minister because, again, Mr. Orberle introduced some thing which is very rare in this Committee, an element of partisanship suggesting that somehow we were contributing to separation. I hope you do not agree with him on that.
It seems to me, gentlemen, you have very eloquently remind ed me of the degree to which this government and this parliament—all members—have brought this country to the stage where we no longer call it B and B. It is bilingual and multicultural. In the early 1970s, all Canadians of various cultural backgrounds had an opportunity to make their culture, language and so on known to other Canadians. So, by all means. Would you like to comment?
Mr. Bongart: I would like to say that 1971 was the year when the government adopted the official policy of multiculturalism. The ethnic community in Canada over the last seven years have worked very hard and in concert with other organizations to achieve what we have in fact achieved up to this point.
Now is the time, when we are talking about the constitution, to entrench this guarantee, to put a guarantee or something of that nature which guarantees freedom of choice for each Canadian, and we consider the ethnic community or the third group; whatever name you would like to use, as Canadians who love this country very much, and who would like to contribute to it, but we would also like to make sure that in the future we have a guarantee which makes it possible for us to extend what we have achieved and work in freedom and to contribute even more to the Canadian fabric or mosaic.
Mr. Mackasey: I share your views, and Mr. Waddell put it correctly when he pointed out three different ways in which we can do it, either by way of a preamble which would give us a little more opportunity to express the deep feeling which all of us have for this great nation.
I am particularly impressed by the contribution of Canadians of German background, because Mr. Waddell said they were not very much up-front with Canadianism. They are not all living in the past as other groups are. I find that wherever you look, schooling, Parliament, you find the contribution of Canadians of German origin are there.
Perhaps we could have placed in the preamble some of the deep feeling and conviction we have for this country, particularly those who chose it. Our problem in writing the preamble was to write one which was acceptable to all groups, jealous of our heritage, our contribution—so even the preamble was difficult; hence, no preamble.
The question of enshrining in the constitution your very legitimate concern—I am not saying we would not do it, but again, it stems from the concern of other groups who say, “We should have this and we should have that”. We are trying very hard to come up with a good constitution.
I resent the fact that it is creating dissension in this country. 1 am not resenting anything you have said.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey.
Mr. Epp, followed by Mr. Lapierre.
Mr. Epp: (Speaking in German)
I would like to start with the concept of multiculturalism. We have had before this Committee a general acceptance of groups that are now termed ethnic, a term which I personally somewhat resent. Maybe only if one has that label given to one that one could understand the resentment.
There is a general acceptance that, in the constitution and in the daily lives of Canadians, government services should and must be provided in the two official languages. There is no argument there, nor did your brief put forward any argument on that point.
Then we get into the real difficulty, the area of grey, and that is how do you establish, either by constitution or provision or a policy provision, the validity of—and another term I resent is a third language option because it is all gradation; but I will use the term because we all understand it now; a third language option which, without entrenching could still give the option to Canadians who want to follow that option?
Mr. Kiesewalter: You may be aware that there are a number of provinces with programs.
Mr. Epp: You are thinking of Alberta.
Mr. Kiesewalter: There is another one, and maybe Mr. Knodel may want to say something.
Mr. Knodel (Chairman, German Canadian Alliance of Alberta): The Ukrainian groups have a bilingual pro gram. For the past two and a half years the Germans have had something going in Edmonton and it works quite well.
At the same time it does not mean to say that we are taking anything away from the French program. It is, in fact, growing in the province of Alberta. We have a university where you can take up to two years of French in the program, and in fact there is a demand for French teachers in Alberta which goes to show that it is expanding and at the same time other so-called third languages would like to get into the system.
Mr. Epp: Do you share the view that many other groups, such as yours, for example the Polish Congress, the Ukrainian Committee, have put forward that if the word “multicultural” or “multiculturalism” were included in the Bill of Rights in the constitution—and I am not here to define whether it should be in Section 15 or Section 2. In other words, if the concept—because it would be the first time in the Canadian experience that we would have had or given it legal form; in a constitution we would have also given it constitutional validity: would that fact, that Canada is bilingual, bicultural and multicultural, a multicultural society, enhance multicultural ism in Canada? In other words, it would take it away from the political arena in the sense that while it is valid to have our dances and our language and food and ethnic occasions, valid though they may be in themselves, they do not have that constitutional position or position in jurisprudence; would that, to some degree satisfy you, and would it reverse or at least end the trend which you have identified whereby ethnics “shed their identity”.
Mr. Bongart: May I say, Mr. Epp, that I share your abhorrence against terms like “ethnic” and all these things, especially since these terms have a way of coming back every ten years either in a negative way or maybe even in a positive way, but the other way around.
These terms are not very good, but they are used for want of a better one, because the term “multiculturalism”, quite apart from being a tongue twister—well, it is not such a nice word— but we have not got anything else at the moment.
Coming to the main point of your question, it would be a step in the right direction.
I would like to point out—something I have said three or four times tonight—Canada has an official policy of multiculturalism, and I would like to point out further that the Prime Minister said at that time that Canada is a bilingual but multicultural country. If that is so—and there is no doubt about it that it is so—then we, the majority of the German Canadians do not see anything wrong putting it in the constitution to give us that right and to conclude, you might say, that which has been started in 1971.
So I very much agree that would be a very desirable thing from all points of view.
Mr. Epp: Thank you, and I share your view and thank you very much for it.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.
Mr. Lapierre: Thank you, Mr. Chairman. Gentlemen, I read your brief with great interest.
Taking the recommendations that it contains, one by one, you are asking us to amend Clause 1, which is already admitted by all members of this Committee.
As for Clause 2(b) on freedom of expression, I will say that 1 am from Quebec and I have lived under Mr. Duplessis’ repression. Therefore, I believe that if we limit freedom of expression in Canada, we would be in a very difficult situation and 1 must admit that very few groups have asked us to limit that freedom because it is one of our greatest freedoms and it does contribute to the greatness of our country.
I looked at the examples that you are giving, to prove that, with or without a charter, the rights have not been well protected. But all the examples you have given referred to war time. You know as well as I do that a charter of rights is valid only in peaceful times and that in war time, during an insurrection etc., the same yardsticks do not necessarily apply because those do not represent a normal situation.
What concerns me most, are your comments regarding Clause 23 because, as a francophone, I give great importance to that clause. You ask that education remain a provincial jurisdiction. I must admit reading and rereading that clause that there is no question that education would cease to be a provincial jurisdiction. The only new element in Clause 23 is the minority language educational rights, not the majority language. I do not understand how you cannot admit the linguistic duality. I recognize multiculturalism as a fact. Personally, I would favour more than mentioning it in the preamble. I think it could be included in a particular clause in the charter so that the multicultural character of Canada is recognized but that does not mean that we have to give up the linguistic duality of Canada and cease to protect minorities which historically, especially outside of Quebec, have been grossly and unjustly neglected.
Do you not think that at the same time we recognize the multicultural nature of Canada we can also recognize the bilingual characteristics of our country? Do you not think that both can be included in the charter?
Mr. Kiesewalter: May I answer at least one part of the number of questions that you have had. At first you indicated that you cannot agree with our thoughts on freedom of speech and you have the right to say that it is very important to have freedom of the press and so on. You pointed out the example of the implementation of the War Measures Act.
Mr. Lapierre: Non, loi du Cadenas.
Mr. Kiesewalter: Yes, I know. The point we are trying to make is that there should be some provision in the law and we are not arguing for the importance of freedom of speech, or freedom of expression because we value it as highly as anyone else. But there should be some provision that provides for accountability of the mass media towards groups that feel discriminated by films, newscasts, documentaries, whatever. This is the only thing we are trying to get across and I think you will agree that this is, especially in our case, a real problem; that we have no way of getting back at the mass media that has portrayed us in a rather negative way for generations.
Mr. Lapierre: Is it necessary that that section be included in the Constitution? Do you not think that ordinary statutes could allow protection against libel or such things? Such laws did exist before the Constitution any way.
Mr. Kiesewalter: We understand that there are provisions in the human rights charter, especially in regard to freedom of expression that has a clause where it says that groups that feel unjustly treated by the media have the right to expect from the same media the possibility to present their own point of view. I think something like this would be quite acceptable. We know that in the Criminal Code there is a provision for us to go to the courts and take radio stations or television stations to court but what we would rather have is a provision made in the Bill of Rights that makes the media, do it the other way around, accountable for the position they have taken.
Mr. Lapierre: I would like your comment on Clause 23.
Mr. Kiesewalter: The problem with minority language rights, you must appreciate our position there, too. It does, in fact, and I know we are not the only group that has argued that point, it does in fact make us into second class citizens. Nobody argues the importance of the bilingual nature of the country. There is no one; but you must admit by protecting or enshrining or entrenching the rights of two cultures and, you know, you cannot separate the language from the culture. It is of vital importance. By entrenching the rights of two, you discriminate against all others.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lapierre.
Mr. Friesen, you have a question.
Mr. Friesen: Thank you, Mr. Chairman. I could not help thinking of my own growing up years when you were recounting the history of the Germans. I was a teenager during World War II in a Mennonite community of Mennonite parents, all of whom were pacifists; and yet during World War II, we had to register. But we were not allowed to register as Canadians, we had to be Germans. You can well imagine the tension that there was among, the kids my age, when it came to schoolyard fun, if you had a pure German name you were easily identified. But if you had a name that could be fudged as being maybe Dutch or one of the other Nordic languages, man, the tension that it created in that community because you see the aspersion was always there that if you had a German back ground then you were not a good Canadian.
Mr. Waddell wanted to know what happened. I could tell him stories about that, of Germans in the community who had to move beyond Hope—that is a capital H, that is the town Hope—maybe beyond hope, too; just as the Japanese had to move on. So, I remember that very well, and a classmate of mine who went to medical school and had a hard time getting through because of the anti-German feeling, is now a specialist in medicine. But that all changed. It all changed without the National Guard standing at the doors of the school and
without bussing or any of those things and 1 cannot help but think that you have a real point when you point out that maybe we can bring about change through legislation and growth in our community, growth and understanding, better than through the judicial process as the American experience has been.
You mentioned, I believe, in your brief, that the German community has had trouble getting its story told in history. Did I understand you correctly? Could one of you elaborate on why it has been difficult?
Mr. Bongart: Mr. Chairman, if I may, this is a very interesting question and I do not think it was by design— maybe Mr. Grenke will oppose that view—but I think it was simply not done because until about seven or eight or nine years ago, until the German community, that is some scholars, some academics, and I am proud to say that 1 am one of them, we took the initiative and we did do some serious research that had been done before, but in a concerted effort to look at the contribution of Germans in Canadian history. We looked at the German settlers in the Maritimes. I would like to remind you that the very name of New Brunswick is really a translation of Neu Braunschweig and 1 could name a few more examples.
But to come back to your questions, 1 will not take too much of your time, but basically I believe, and I am a founding member of the Historical Society of Upper Canada, Mecklenburg, which was by the way the name of part of Ontario in the 18th Century, the main reason was that German academics, German Canadians, in the last 200 years up to the last 10 years, perhaps, have not really taken the initiative. In the spirit of multiculturalism and in the spirit of the new awakening, of working together, of sharing things, there has been now an effort on the part of German-Canadian academics to delve into the thing, and let me assure you, Mr. Chairman, and Mr. Friesen, that we are finding out astonishing things in our research. I am quite sure and confident in saying that the next five years or so when all of the research will be published, and we are making great strides towards that, there will be quite a change in the image and in the concept of the German contribution in the last 200 years to this country, which we all love so much. Thank you very much.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Friesen.
Mr. Friesen: One more question, sir. My great grandparents came here in 1875 and lived in sod huts in Manitoba and I think that they would be very surprised if they were here today and found that they were not part of the founding nation of Canada. I wonder if one of you could give me your definition of what the founding race or the founding people of Canada are.
Mr. Grenke: That is, of course, a very difficult thing for us to deal with. I am not quite sure what is generally meant by founding races. 1 think what they mean is when Canada became a nation there was somehow a union of French and English to create a united Canada. Now, if they mean that, of course, they are quite wrong because this union was only in Canada East and Canada West but you had in this union also
Nova Scotia, New Brunswick, Prince Edward Island and so on and so forth, and later other provinces, and these united with Canada largely to perpetuate economic interests. So, rather than seeing Canada in terms of founding races, to me it makes more sense to see it as a realistic alternative to American expansionism at that time and attempt to create a nation which was British, and would preserve British culture and so on and so forth.
I do not want to say this but 1 believe that the idea of founding races is a myth created largely by the Liberal government in order to justify the present course which it is taking and the course which it has taken to a greater extent since the turn of the century; but by this I am not saying that I disagree with it but I think that it is largely a myth rather than a reality. If it is a reality, it relates only to Central Canada and it is in a new and different way an attempt to push Central Canada down the throat of the remainder of Canada, that is the western provinces and the maritime provinces.
December 17, 1980, Mr. René Simon, 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. 28, p. 4 (click HERE)
Mr. René Simon (President, Attikamek-Montagnais Council): […] Our reference to traditional values clearly indicates that we refuse the option, considered interesting, of progressive assimilation into Canadian society, which has already insidiously been undertaken and which is either directly or indirectly encouraged by all the political, administrative and economic agents which you deal with. We no longer wish to be considered as foreigners in our own country. We believe that the rights which are ours because we were the first occupants of a vast part of this country authorize us to make this choice. And we also believe that the members of the majority should accept this choice.
In our view, your acceptance of this choice is one of the basic conditions for the establishment of durable relations between our different peoples. If multiculturalism is really to be one of the fundamental characteristics of Canadian society, its cornerstone should most certainly be the recognition of the specifity of North American Indian culture.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Asselin. [Text] I see that the honourable Senator Bosa would have a short Question to conclude. Senator Bosa.
My question is directed to Mr. Simon. On page 3 of the brief you enumerate some of the attempts that have been made in the past to radically change your culture and that that transformation is being resisted to the displeasure of the missionaries, administration, and the business people.
On page 4 you make reference to multiculturalism. Do you feel more comfortable now that the Prime Minister has announced a policy of multiculturalism on October 8, 1971, during which he defined Canadian society as a society that has two languages or communicates in two official languages but it does not have an official culture and that no culture is more important than .any other culture, thus creating a psychological climate which is more receptive to the kind of diversity that we have.
Do you feel more comfortable with that policy now, do you think that Canadian society is evolving and that it is maturing and it becomes more receptive to diversity?
The Joint Chairman (Mr. Joyal): Mr. Simon.
Mr. Simon: Thank you, Mr. Chairman.
Yes. I think that the Canadian society has evolved in the sense that it recognizes the multiplicity of cultures.
We look upon it as an improvement over earlier years when the Indian administration was under the jurisdiction of the Department of Immigration. The fact that the Indians are considered as a nation distinct from the other nations which exist in Canada is a step forward. I see it as a step in the right direction provided that the Indians are accepted as the first people with their own identity, their own culture and their own language. In that sense there has been an evolution. I for one think that it is very positive.
December 18, 1980, Mr. Nicolas Zsolnay, Mr. Eric L. Teed, Mr. Mackasey, Mr. Rudnyckyj, Mr. Laurence Decore, Mr. Beatty, Mr. Errol Townshend, Mr. Lewycky, Mr. Oberle, Mr. Epp, 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. 29, p. 52 (click HERE)
Mr. Nicolas Zsolnay (President, Canadian Citizenship Federation): […] Our movement was a pioneer in the developing interethnic and intercultural relations on a wide scale among Canadians. De facto, the chain of citizenship councils across our country became the cradle of Canadian multiculturalism. The multiethnic fact of contemporary Canada was first recognized by the B and B Commission and then elevated to legal status by policies of the federal and several provincial governments.
Consequently, and obviously, we wish to add our voice to previous suggestions for the entrenchment of multiculturalism, the right to pursue and to preserve ethnocultural heritages. Our preference would be a new section within the act, eventually combined with Section 15 establishing cultural rights and freedoms in the context of unreversable multiethnic facts of the Canadian social fabric. A minimum requirement seems to be the enshrinement of multiculturalism, either in a preamble to the Charter or to the constitution.
Mr. Eric L. Teed (Past President, Canadian Citizenship Federation): Mr. Chairman and honourable members, I think you have put it to a large degree as the brief is presented, but there is one small matter which we feel should be drawn to the attention of the Committee, and that is the question of citizenship.
In various parts of the Act you have “citizen of Canada”. “Permanent residence”, “members of the public” and then you have just plain “Canadian”.
With respect, if the Act is to mean anything there has to be some clarification. I do not know what a citizen of Canada is because it is the creation of the Parliament of Canada. I think there is great danger, which I do not think needs to be pointed out, that merely to say that a citizen of Canada has certain rights, leaves it open to Parliament to define what a citizen is and effectively to strip the effect of that section.
In Section 20, I can say I do not know what a member of the public is. I do not know what that austere “public” is. I would presume that somebody is not “a member of the public” and that means somebody is not going to have one of these rights.
The section in particular deals with information, and I gather that a member of Parliament is not to be classed as a member of the public for the purposes of that section, or maybe a member of the Legislature is not to be classed as a member of the public, and, therefore, he is deprived of his rights.
Then we have the term just a plain “Canadian”. Frankly, I am not quite sure if a Canadian is or is not a citizen of Canada.
Then you have the term “permanent resident”.
Now, if the constitution of Canada is to mean anything, then there must be some recognition that a Canadian is something different from a non-Canadian. There is a growing mood—and we have resolutions against it—that there must be some distinction, and in some provinces you find they are extending the vote and anybody living in the place is a resident and has all the rights and privileges of a Canadian. So we feel in any charter or bill of rights there should be some clarification so that when we talk about a Canadian at least it is intended to mean that we are something different from somebody else.
The mere fact of residing in a country as a resident, in our view, does not make a person a Canadian.
This is a real problem. A new immigrant comes in, a new person comes into the country and the question is often asked: Why should I become a Canadian? I have come across this more than once. “I am not going to become a Canadian. I can work here. I am a landed immigrant, but I do not think I will become a Canadian because I want to retain allegiance to my own country.” This is very disturbing.
Here we are saying we must repatriate the constitution and cannot leave it in the hands of somebody else and that we have to look after it ourselves; at the same time, we find other groups busy running around and saying that everybody must be equal and that there must be no political difference. I think that is not the basis of a country. A country is a political institution.
We are hoping that when this has been gone through again the Committee will come to the conclusion that whatever a Canadian is there must be a distinction between a Canadian and he must have something more than a mere visitor.
Mr. Mackasey: Mr. Teed, this is one occasion on which I wish we had more than limited time. I like your brief and the practical way in which you have approached matters. I wish I could deal at greater length with you with the. obligations of citizenship. This has been overlooked, particularly at a time in the evolution of this nation when it is something almost taken for granted without really having to work for it.
But I would like to raise a point which perhaps has not been made. Quebec does have probably the finest Charter of Human Rights in North America and was able to strike down what was a discriminatory preamble to Bill 1. We talk a lot about Bill 101, but not Bill 1. They were able to modify some of the wording of Bill 101. People around here think discrimination was not practiced against English Quebeckers. But it was.
Finally, despite their strength, provincial legislation was able in the passage of one piece of legislation to remove certain basic rights, something which I will always regret having occurred in our province.
Mr. Rudnyckyj: I think that in all our constitutional planning, there is one deficiency, namely the danger of so-called transparent or invisible citizens. These are one-third of the population. I call them itrophones, anglophones, franco-
phones-and “itrophones” is a term introduced in 1974 in linguistics.
One of the very important points in our presentation is that concerning multiculturalism which is so far only a policy but not constitutionally secured as a provision.
In my opinion, our minimum requirement is to give it recognition in the preamble to the constitution or to constitutionalize the whole policy as it was presented by the Prime Minister in 1971.
So this is a point which, in my opinion, is very important as far as invisible or transparent Canadian citizens are concerned
Mr. Laurence Decore (Chairman, Canadian Consultative Council on Multiculturalism): […] Mr. Chairman, in reviewing these comments made by all party leaders, our Council concludes that Parliament defined Canadian society as being a. bilingual and a multicultural nation. Thus, ladies and gentlemen, it seems only natural and only logical to include Canada’s multicultural reality in the resolution before your Committee.
The Council is completely convinced that all ethnocultural groups recognize the importance and place of the French language in Canada. Multiculturalism respects the linguistic
status of English and French as defined in the Official Languages Act and in the resolution.
We respect both the historical claims and the present realities on which official bilingualism is based. All ethnocultural communities have a special interest in guarding against the drowning of cultures in what is called the Anglo-American sea. They see the continued viability of the French language as one of the cornerstones of cultural pluralism.
In short, Mr. Chairman, the policy of multiculturalism does not challenge the status of Canada’s official languages but compliments it. By promoting a climate of cross-cultural sympathy and linguistic opportunity, multiculturalism works to establish the prerequisite for Canadian unity in a bilingual and in a multicultural framework.
When Parliament agreed to support the multicultural policy in 1971, the ethnocultural groups were pleased that there existence was officially recognized. Since this policy was unanimously supported by all parties, we interpret that, I think all must interpret that as meaning that multiculturalism was therefore a national policy involving all Canadians. As a national policy and an integral part of the Canadian reality, multiculturalism surely must be included in the Canadian constitution, the fundamental national framework for all Canadians, present and future.
Our Council recommends that a preamble be added to the resolution and that in that preamble a recognition of Canada’s multicultural society be clearly stated. What we are suggesting is not new or untoward, for in the final report of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, which was co-chaired by Senator Gil Molgat and Mark MacGuigan, the following recommendation was made in Chapter 10 dealing with language rights:
The preamble to the constitution should formally recognize that Canada is a multicultural country.
Mr. Chairman, more recently in the Senate Debates, Appendix A, The Constitution, Second Report of the Special Joint Committee, October 1978, the report stated in the section dealing with the preamble and the aims of the federation that:
Further, although we recognize the concept of multiculturalism is implicitly covered by the phrase “equal respect for the many origins, creeds and cultures … that help shape Canada”, we urge that the word, “multiculturalism” should also be included.
The Council fully supports these recommendations and agrees that multiculturalism requires formal emphasis and must be inccluded in the preamble to the constitution.
The Council has searched for the best preamble to reflect Canadian society and we could not find a better alternative than the one which would incorporate the objectives set out in Chapter 6 of the Special Joint Committee of the Senate and House of Commons which we referred to earlier. It says: number one, this is what we should include:
1. To establish federal system of government within a democratic society;
2. To protect and enhance basic human rights;
3. To develop Canada as a bilingual and multicultural country in which all its citizens, male and female, young and old, native peoples and metis, and all groups from every ethnic origin feel equally at home;
4. To promote economic, social and cultural equality for all Canadians as individuals and to re-duce regional economic disparities;
5. To present Canada as a pluralistic mosaic, a free and open society which challenges the tal-ents of her people;
6. To seek world peace and security and international social progress.
Now, Mr. Chairman, with respect to the Charter of Rights, our Council supports the general intent as expressed in the resolution. The basic purpose of a Charter of Rights must be to protect individuals and minority groups. Section 1 of the Charter makes it possible to deny fundamental freedoms to individuals or groups when the words:
… subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government …
We join with others who have appeared before you in strongly recommending that that clause, or the wording in that section which allows legislators to over-ride the rights of individuals or groups be eliminated from the Charter.
In our judgment, a Charter of Rights must put some fundamental freedoms beyond the power of a legislature to effect. As Section 1 now stands, rights can be taken away when you need them most-in times of temper and in times of uncertainty.
Therefore, Mr. Chairman, we recommend, in the same thrust of the broad objectives we supported earlier, the following wording for Section 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such limits as are prescribed by law and are reasonably justifiable and humane in a pluralistic and democratic society.
In dealing with fundamental freedoms, Section 2, the Council is concerned that organizations such as the Ku Klux Klan are again burning crosses in Canada, in my own provinces. We believe that the intended meaning of freedom of opinion and expression should not allow individuals or groups to infringe on the rights and freedoms of others. No group should be allowed to propagate hate messages at the expense of any other group.
The Council therefore recommends that Section 2(b) be strengthened in line with Article 19 of the International Bill of Human Rights to read:
Freedom of thought, belief, opinion and expression, including freedom of the press and other media of information subject to the rights or reputation of others.
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.
The Council wishes to again inform this Joint Committee that it supports the Official Languages Act or official languages of Canada as proposed in the Charter. We would wish however, to amend Section 22 as follows: Section 22 would then read:
Nothing in Sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is essential to the preservation and development of the multicultural reality of Canada.
Our aim, Mr. Chairman, in this recommendation is not to allow the prevention of valuable programs by government institutions that may deem them to be outside of their jurisdiction. As an example, we would note the present broadcasting by the CBC in the North in Inutituk and other native languages. We would wish that such programs continue because, as well as providing basic information, they promote the preservation of the Inuit and other native cultures.
In dealing with Section 23, concerning minority language educational rights, we wish to draw the attention of the parliamentary Committee to the inherent dangers in the present wording. As this section reads it creates different classes of citizens and it is therefore discriminatory.
The sections create two classes of Canadian citizens, depending on their mother tongue, and two classes of immigrants who become citizens, depending on the countries from which they came. We find a Charter which includes such discriminating features difficult to accept. But at the same time, we find it difficult to formulate Section 23 to remove the difficulties
we have mentioned while trying to encourage the very legitimate demands that Section 23 is attempting to realize; consequently, we would articulate some principles which we believe Section 23 must contain.
The first principle, Mr. Chairman, is that, all Canadians must be allowed the opportunity to acquire proficiency in one of Canada’s official languages.
The second, all Canadians should be allowed the opportunity to acquire a capacity in the other official language. The third, the wishes of provincial legislatures in legislating in the area of language must be respected.
The fourth, all Canadians should be allowed the opportunity to acquire a capacity in languages other than the official languages if they so desire.
We articulate the second principle since we believe that the promotion of both official languages is beneficial to the individual and to a united Canada.
We articulate the fourth principle because of the relationship of language and culture. Although this relationship is not absolute, there is a necessary relationship between language and culture. This being the case, for cultures to be preserved and to be developed, there is a need for language acquisition. We also think that the learning of languages by Canadians would give this country a substantial resource to be treasured, to be valued for international trade and diplomacy.
The Council is particularly concerned with the interpretation and intent of Section 24 under undeclared rights and freedoms, concerning the native people of Canada. The Canadian Indian, nonstatus, Inuit and Metis people currently referred to as the native people of Canada in this constitutional document, historically have been among the most disadvantaged people in our country. In addition to their social and economic plight, they are confronted with the threats to their cultural heritage and identity through processes such as urbanization and mass media.
Our Council urges the Special Joint Committee to be receptive to the recommendations of the native groups. The representatives of the native groups can speak more directly and immediately about their social and economic problems. However, Mr. Chairman, the Council joins with them in sharing their anxiety about the threat that today’s society presents to their cultural heritage.
Culture is a dynamic aspect of our lives. It affects our perception of ourselves and of others. By creating greater appreciation of cultural values, multiculturalism serves as a strong and unifying force in this country. A strong and unifying force in this country. Multiculturalism is not merely a term synonymous with cultural pluralism or diversity, it is the joining together of all traditions which collectively express the reality called Canada, joining together while still maintaining individuality and distinctiveness.
Mr. Beatty: Thank you very much, Mr. Chairman.
Mr. Decore, let me on behalf of all of my colleagues first of all thank you most sincerely for your presentation. I think it is clear that a great deal of thought has gone into your brief and I think that the concepts which you articulated this evening are very valuable and will be very helpful to us as we do our work in terms of trying to make modifications to the government’s proposals which will make improvements to it.
If I understood, Mr. Decore, your description of the Council, your function is to act as an advisory body. To whom do you report, is it to the Minister of State for Multiculturalism?
Mr. Decore: Yes.
Mr. Beatty: Have you had the opportunity or have representatives of the Council had the opportunity to meet with the Minister of State for Multiculturalism to discuss the recommendations you are making this evening?
Mr. Decore: Yes.
Mr. Beatty: And does the report of the Minister support?
Mr. Decore: I am sorry, does the what?
Mr. Beatty: Does the report of the Minister support?
Mr. Decore: Well, the Council, sir, Mr. Chairman, the Council is the one making the presentation. I am sure, and I am pleased to tell you that we have a degree of independence that we are allowed to give our expressions. There is no doubt that we tell the Minister what our feelings are on these matters and I hope, and I am sure that he does listen, so there is a consulting process involved.
Mr. Beatty: Consulting process … but he did not indicate that he was supportive of the proposals which were put before the Committee tonight?
Mr. Decore: Well, he has suggested to us that we are free to come forward to this Parliamentary Committee and express our concerns and he has not written the report for us, we have.
Mr. Beatty: Yes. What sort of structure did you follow in terms of drawing up your recommendations? Did you strike a subcommittee or how did you arrive at the recommendations you are making this evening, what sort of process did you follow?
Mr. Decore: Well, it is an on-going process. I suppose it starts even as early as 1971 when former consultative councils have made recommendations with respect to a new constitution. This is not a dead issue in Canada, it is an on-going debate, and there has been a great deal produced by this Council and suggestions on what should be included in a new constitution.
We simply followed and participated in that kind of an exercise.
Mr. Beatty: Do you strike a committee to look at this particular resolution and make recommendations?
Mr. Decore: Yes, we did.
Mr. Beatty: So that the committee, a subcommittee made recommendations to the full council and does this report include all of the salient points which were recommended by the subcommittee?
Mr. Decore: No, because there was a subcommittee struck which was active before this resolution that you are dealing with now was submitted, and so some of these suggestions I considered and the committee considered and the Council considered to be no longer effective. For example, we used as one suggestion the possibility of changing Section 95 of the BNA by simply tucking in the words “and multiculturalism”, where that clause reads that there shall be concurrent power with agriculture or in agriculture and immigration with the provinces and the federal government.
We thought it might be interesting to include multiculturalism in that section, but on reflection, and after this document came forward, we thought it was not such a good idea; so that is the sort of thing that was happening.
Mr. Beatty: Have you given thought to recommending that it would be desirable to create a commissioner of multiculturalism, as a possibility?
Mr. Decore: Yes, that and we have given consideration to suggesting to the Minister and to the government that there be a whole new concept of a ministry of culture which would include things like the Canada Council and perhaps the National Film Board, all things that touch our lives
Mr. Beatty: With the report of the subcommittee that you mentioned, would you be prepared to make a copy of that report available to members of this Committee so that as we do our work we could see the full scope of the recommendations that were made and be aware of some of the concerns which the subcommittee had?
Mr. Decore: Well, I repeat, Mr. Chairman, that I think the report that you are referring to is a report that was made up or prepared prior to the drafting or the tabling of this document, so some of the suggestions I think, we think, are no longer applicable.
We are a consultative Council. I suppose the process, Mr. Chairman, is that a request for that document be made to the Minister to whom we report. That is a working document that I considered in the formulation of our end position, the brief that we are giving to you today.
Mr. Beatty: Certainly. Would you have any opjection to the Minister making it available to this Committee if he chose to do so?
Mr. Decore: Well, sir, I am not the Minister, I think you would have to ask the Minister.
Mr. Beatty: I will tell you, Mr. Decore, why I was concerned, and perhaps, Mr. Chairman, I might ask a messenger if
he could give a copy of this to Mr. Decore, perhaps also to other members of the Committee as well.
I want to read to you a memorandum to the Minister of State for Multiculturalism from his Executive Assistant, Susan Scottie, which is dated October 3, 1980, and it is regarding attached letter and report from Laurence Decore, and it reads as follows:
As I mentioned to you, Decore, Arpin and Grodecki have requested a meeting with you prior to the National meeting in Edmonton to discuss their report on the constitution. The report gives a historical background on efforts of previous CCCM’s during the past nine years to entrench the concept of multiculturalism in legislation, such as the immigration bill, the preamble to the constitution and also to provide a statutory base for multiculturalism. The bottom line of the report is that the government has had an opportunity to act on many occasions but has always chosen not to. The Committee’s message is that it is time to act now in order to show Western Canada in particular that the government is not using multiculturalism as a political football.
I think it is important that you read the full report as it is the intention of the executive to raise this issue at the national meeting after discussion with you. If the report gets out, it could prove embarrassing. There are three main recommendations on page 10 which request inclusion in the constitution of recognition of cultural diversity in the laws and institutions of government and request the appointment of a commissioner of multiculturalism.
The historical picture given in the report paints a very negative picture of the government’s perceived lack of commitment to the policy. I must agree with Decore, however, that the widely-held view in Western Canada is that the program is only there for political reasons. The perception needs to be redressed. Perhaps the question could be made to form part of whatever western strategies are developed over the course of the next few months.
Attached to Decore’s report is also a paper produced by the CCCM Culture Committee which gives a general statement about multiculturalism being included in a general cultural policy and also provides a catalogue of ideas and suggestions for implementation of future cultural policy.
And it is signed Susan Scott, Executive Assistant to the Minister.
The reason, Mr. Decore, why I was concerned was that obviously this memorandum raises very serious questions about the contents of the report and the findings in terms of the historical perspective, what the development of multiculturalism
policy has been in Canada in the past, and also about the reaction of the government to recommendations made by you. You will recall the comment on this, it says:
If the report gets out it could prove embarrassing.
Well, Mr. Decore, I think that if you felt the report was sufficiently substantive, the recommendations you were making were sufficiently important, as I gather from the letter which is also attached from you to the Minister indicating that you wanted to meet him about these reports to discuss them, and you ended off saying:
Needless to say, the Executive Committee has treated this matter as a priority.
And attached to that is a motion moved by Sylvia Hamilton and seconded by Donald Fortin which says, first:
That the ad hoc committee’s report on the constitution be accepted and adopted in its entirety.
2. That the report be forwarded to the Minister along with the paper Multiculturalism-Next Steps for his immediate attention.
3. That the Chairman and Vice-Chairmen meet with the Minister prior to the national conference to fully discuss the context of both reports.
In view of the fact that the council apparently felt that these recommendations were substantive and important, I was very concerned, then, when I saw this recommendation from the Minister’s Executive Assistant that she was concerned that this report should not be made public lest it be embarrassing to the government, and clearly I think members of the Committee, when your Committee on the constitution, your ad hoc committee made these recommendations, surely it is relevant to the work of this Committee to see whether indeed the government has accepted them and to see whether proposals which have been made by you to the government could be helpful to us in terms of doing our work on the constitution?
Mr. Decore: Well, I can only assure you, Mr. Chairman, that in my discussions with the Minister, in our discussions with the Minister, that he has been very receptive, he has treated the information that we have gathered for him and the opinions that we have given to him seriously. He has encouraged us to come here and has encouraged us to answer his questions. I do not think he has anything to hide. I am here to tell you that, sure, we make statements that suggest to government that maybe they should be moving a little faster or perhaps a little stronger in a certain area, and sometimes I think those suggestions are taken up by the Minister. I know they are.
So we are here, the documents that you have referred to at length are working documents that, again I repeat, that came before the tabling of your actual resolution. Some of those statements are now obsolete, but they were working ideas that come together in the final position, that is our brief today.
Mr. Beatty: Have you indeed expressed the opinion that the government is using multiculturalism or that there is a perception
that the government is using multiculturalism as a political football?
Mr. Decore: I did not express that, Mr. Chairman. I suppose this is the best way of explaining the position, my view of the situation, that since 1971, when the policy was first pronounced, it served a tremendous advantage, gave a great boom to cultural groups in the sense that people had an understanding, a tolerance of others. I really believe that, that there was cross cultural communication, I could speak to a black and a black could speak to me, and we had much more in common than perhaps both of us thought at the outset.
A lot has happened, a lot of beneficial things have happened since 1971, and now we are simply suggesting that there is one additional step that needs to be taken and that is the formalized step of putting something into this document which recognizes multiculturalism as a reality.
Mr. Beatty: And have you dropped what is referred to in the memorandum to the Minister as a recommendation that there be appointed a Commissioner of multiculturalism, is that still current, is that still a request that you are making or has that been dropped as your recommendation?
Mr. Decore: Well, Mr. Chairman, we are dealing with issues that affect you specifically in so far as the constitution is concerned. We did not put that in our brief. We did not talk about a Ministry of culture, which I hold very dear, I think it is important, I think we should get on with that investigation, but it seems to me that it does not form part of what we are talking about today so it is not in our brief.
There are all kinds of things that we have talked about, centers of ethnic studies, chairs of ethnic studies, supplemental language programs that should be boosted or bolstered. Many issues.
Mr. Lewycky: […] It seemed that you did dwell quite heavily on the matter of a preamble and you are aware that we do not have, at least in
the current proposal, a preamble, and I was just wondering how strongly you felt about that preamble being included in this current resolution, and then also I was just wondering about how you felt if some of these suggestions you have made about multiculturalism were not included in the constitution, whether you would feel that this would be a betrayal of the 1971 pronouncement of the policy of multiculturalism?
Mr. Decore: Well, the first question, how strong do we feel about a preamble. Mr. Chairman, many children in the United States appear to be able to recite their preamble or parts of their constitution by heart. In fact, because of the influence of television and radio, I suppose even Canadian children can recite part of that constitution and those constitutional documents.
I would like to see something that sets the mood or the attitude of Canadians in defining what Canada is, and I think that the preamble can do that.
I wish that I was a poet and a lawyer that could tackle that kind of problem. It is not an easy one, it is one that is tremendously challenging, and I think is important, and the answer to your question is that I think you should give it serious consideration because of the attitude and the mood that should be created in Canada, a unifying mood.
However, it does not stop there. There are things that we are suggesting in our brief, in the substantive portion of this constitutional document, that we think can also add formalization to that concept of multiculturalism, so I do feel strongly about the preamble. We have told you that, but we have other suggestions for you to consider.
The question of whether or not I would consider a betrayal-your job is not easy, ladies and gentlemen, and you have listened for a long time and you have had a lot of ideas put to you and perhaps a preamble is not easy to deal with, as I have suggested. I do not think I would be betrayed. Perhaps I would feel that I have not been articulate enough in convincing you, or perhaps I would feel that I was not articulate enough in convincing you that something in the substantive portion of the resolution was not included, but I do not think I would be betrayed. I am sure that you will find some answers for us.
Mr. Errol Townshend (Chief Editor of “Cultures Canada”, Canadian Cm1sultative Council on Multiculturalism): Perhaps I might add something to that.
It would appear from the proposals in the resolution that we are moving somewhat away from the established system of government in this country, and yet, as I understand the proposal, we will still have a preamble of the old BNA Act which says that we are a form of government similar in principle to that of the United Kingdom.
So here we are on the one hand going to Britain to patriate the constitution and then we are still going to have a preamble saying that we are like the British system of government, whereas here we are proposing a situation where Parliament would no longer be supreme in terms of its ability to make laws any way it saw fit. It would be restricted by the Charter of Rights, subject, of course, to the interpretation of the courts.
So it seems to me you ought to have a new preamble go with these amendments that you are proposing, otherwise I can see confusion.
Mr. Lewycky: All right, thank you very much.
In your brief you do discuss French language guarantees, if could use that word, in your description stating that you recognize the historical significance of the French language, and there has been some fear expressed that the more you include other languages, that you would tend to diminish the importance or the aspirations of people who might be of French background, and I was just wondering how you would respond to that type of an issue?
Mr. Decore: Well, Mr. Chairman, we are not proposing a concept of multilingualism. We accept, and I emphasis this again, we accept and think it is a healthy thing that Canada is officially bilingual. In fact, I believe that many ethnocultural groups are made stronger by the fact that the French culture, the French language is made stronger. So I do not think there is any fear that the country is all of a sudden going to have a proliferation of languages that nobody can deal with. Not that at all.
Mr. Lewycky: There was one point in your brief where you talked about the fact that multiculturalism and many languages could be a resource with regards to trade and also with regards to diplomacy. I find that a rather interesting sort of idea because I have always thought of culture as being a resource, a renewable resource such as energy, that you have a lot of in Alberta, and I personally, from even my own experience, I know that being able to speak more than just French and English has helped me in terms of travel in overseas countries, and I am just wondering if you could elaborate a little bit on your point about this cultural resource and how you see this tying in to your suggestions for changes in the constitution?
Mr. Decore: Well, first of all, Mr. Chairman, I think there is a self satisfaction that a person gets when he not only can display his dances and his folklore but that he can understand it. If somebody does a rather intricate step, it is nice to be able to read and learn what the history of that step is so that I can impart that knowledge to you. It is nice to look at something but it is nicer to look at it and understand it, and I think language gives us that opportunity.
If you learn Polish, you have the opportunity of explaining to somebody that this is the dance and this is what it means, because you are able to interpret it from your history, from your books.
It is a renewable resource for certain. If I travel to Europe because I have a knowledge, some knowlege of a Slavic language, it gives me an ability to represent Canada, not only feel self assured myself but to represent Canada and tell the world about what my country is all about. I can do that to some extent in Polant or Yugoslavia or Russia or the Ukraine or wherever. Certainly that is a benefit to Canada. When you translate in terms of business, you cannot measure the kind of value that that has.
Mr. Townshend: I think as an illustration of that point perhaps we might look at a situation where Canada was one of the first Western countries to open up diplomatic relations with China but I suspect perhaps one of the reasons why we have not been able to follow-up and capitalize on that is that perhaps not too many Canadians can speak Chinese.
Mr. Lewycky: I appreciate the point as to how you tied in the cultural resource with self image and I think that probably you have mentioned something that maybe has not been mentioned before here, that being familiar with another language enhances our own self image, and we feel a bit more comfortable when we are in another country to know that we are coming across in a way that would be understood by that other country. We feel more comfortable because we have that type of background or cultural understanding or appreciation of the connotation of words and meanings. Is that sort of the idea that you are referring to in that area?
Mr. Decore: Yes.
Mr. Lewycky: Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you very much Mr. Lewycky. The honourable Bryce Mackasey. Mr. Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman. Good evening, Mr. Decore. Could I ask you how long you have been Chairman of the Council?
Mr. Decore: Since April of this year.
Mr. Mackasey: Do you enjoy the job?
Mr. Decore: Yes.
Mr. Mackasey: Do you feel you have the degree of independence that you need from the Minister?
Mr. Decore: Yes.
Mr. Mackasey: I raise these points because I was going to raise a point of order earlier, taking exception to the line of questioning, Mr. Chairman, of Mr. Beatty. It seems to me that if we were in a court of law the judge may have accused him of badgering the witness and I hope that if I address this you might not take it out of my 15 minutes, but it seems to me that there are standing committees of the House where if there has been any impropriety on the part of the Minister that this could be discussed much more fully rather than embarrassing the Minister or taking up the time of this Committee on a matter which at the best has no substantiation.
I want to just clarify, because Mr. Beatty has raised certain concerns, has the Minister at any time attempted to coerce you, threaten you, has he been a big bad Minister, Mr. Decore?
Mr. Decore: Mr. Chairman, I have had the unique experience with the concept of multiculturalism with first of all being the first Chairman of the Alberta Heritage Council and serving a Tory Minister, that was for three years; I now have the honour of serving a Liberal Minister. I have never felt badgered. I have no scars on my back. I have been allowed to express my opinion freely and I think and I know that that opinion has been well received.
Mr. Mackasey: I want to say that I appreciate the frankness with which you drew to the Minister’s attention the apparent feeling in the West that possibly our efforts are really window dressing and that we are not really addressing the whole issue of multiculturalism properly. I think that was the concern Miss Scotti expressed in her letter to her Minister. Am I right about that?
Mr. Decore: That is the first time that I have ever heard of that memorandum.
Mr. Mackasey: I would imagine that there is no particular reason you should hear of it, and I am rather surprised that you were even asked about it. This is a memorandum from an executive assistant named Miss Scotti to the Minister and of course it is becoming one of the unfortunate aspects of political life that these things somehow get dragged into these kinds of forums, internal documentation, advice in writing by an executive assistant in this case to her Minister. It is a deplorable practice but we have to live with it, and I apologize to you if you were embarrassed. At the same time I take the opportunity of emphasizing what you said before, when you informed the Minister of the type of presentation you were making here, some of it quite provocative and beyond the resolution which the Cabinet Minister must have agreed to, and that took courage on your part; but did the Minister attempt when you brought this document here to persuade you to remove some of the things that were in direct conflict, say, with the proposed resolution as it now stands?
Mr. Decore: Mr. Chairman, the Minister has been, and I repeat, and I continue to repeat, that he has been receptive to suggestions that we have brought forward to him; I would be surprised if he did not think some of the things were not critical of his position or the government’s position and perhaps his eyebrows have been raised on more than one occasion but he has not said, Decore, you cannot do this or the Council cannot do that. I am here, we are here to present our position.
Mr. Mackasey: Mr. Decore, if you did not have a degree of independence which you think important, if the Minister somehow decided that independence was not in his best political interests, would you remain in the position?
Mr. Decore: No.
Mr. Mackasey: Thank you. Let us get down to something more important here, your recommendation. I want to say that I too, share your views of Canada. I consider Canada to be a bilingual country and a multicultural country and I am old enough to recall a period in Canadian history when that was not the general impression. For instance, we had a very active witness today or yesterday, I have forgotten, I have seen quite a few good people in the last 48 hours, who was on the B and B Commission and recalled to me that B and B was bilingual and biculturalism and it is significant, a close friend, Mark Rose recalls those days when none of us raised an eyebrow at B and B, very few of us, and I think it is significant that the present Prime Minister was in the vanguard insisting that we recognize Canada not only as bilingual but as multicultural and I think from 1971 on when we brought in this concept, when we gave it some legal status, it has been an unifying force in this
country because most of the groups that I have dealings with, multicultural groups, accept that this is a bilingual country but insist that it be multicultural Has that been your general feeling?
Mr. Decore: Without any doubt. I think the history that you have recounted, perhaps no eyebrows were raised in some circles when B and B first started, there was indignation amongst some Canadians that something that only recognized two cultures could have been proceeding and that indignation was expressed articulately to the government of the day and the government responded by asking the B and B Commission or Task Force to look at the so-called others and book four was prepared.
Mr. Mackasey, the most telling proof of your comments would appear to be in a newspaper article I read today which was in yesterday’s Sun written by a gentlemen by the name of Douglas Fisher.
Mr. Mackasey: I have heard of him.
Mr. Decore: Who they tell me at one time did not think that there was much to this concept of multiculturalism. Maybe that is wrong on my part, but that is what I was informed, but who states in this article in a recent poll of Canadians almost 80 per cent when asked what they thought Canada was expressed it in terms of a multicultural country.
Mr. Mackasey: He was reflecting the Canada West finding. I did not mean to be rude and cut you off but I want to congratulate you on your referral to section 22 because I think that we have failed in this Committee to emphasize to particular groups that Section 22 is a clause that recognizes the need for Canadians to learn more than two languages. Section 22 is an attempt to say that nothing in this document, nothing in this resolution proposal, is designed to discourage the problems that have gone beyond the teaching two languages and you have suggested wording to make that even more strong. Would you like to give some capsule comment on that.
Mr. Decore: Well, there are some examples in Canada of perhaps the best example I can give you is one involving a conference that I was recently at. Somebody asked a CRTC official why Gaelic and I think it was Ukrainian could not be used on air on CBC. The Gaelic program in Nova Scotia was on for some 20 years and then was pulled off. If you look at the preamble of the Broadcasting Act it would be one that I would interpret broadly enough to be able to include Gaelic or Ukrainian.
The response of the CRTC official was that because the Official Languages Act existed there interpretation became much narrower and therefore Gaelic had to be taken off and Ukrainian had to be taken off. Now, that same official says that if there is some kind of a formal recognition of the concept of multiculturalism, and I think this does that, they would not have any difficulty with keeping Gaelic on the air.
Mr. Mackasey: That is the purpose of Section 22. Now, let us go to Section 23 because there you have on page 11, as one of my learned colleagues pointed out to me, you have a little bit of a contradiction. Let us go to the third item you have,
The wishes of the provincial legislatures in legislating in the area of language must be respected.
I want to say as a bit of a preamble what we are trying to do here is provide the basic framework. I really hope for instance that in the next 24 months, presuming that we will have a resolution back or constitution back with an amending formula, the one that is included or one that we can come to through some negotiation over the 24 months, that the Premiers and the Prime Minister of the day will sit down and really build on what we have here, include the preamble which we all think is needed but which is difficult at this moment, broaden the section on rights and on multiculturalism. Really what we are doing is attempting not to be flagrant in our invasion of provincial jurisdiction, and you express that, and that leaves me to the wording of Section 23 because if Section 23 was appropriately written providing freedom of choice of all Canadians to be educated in the two official languages or any other, it would be in direct contradiction with Bill 101 in Quebec and Bill 101 in Quebec is supported by the majority of French speaking Canadians even though it restricts their own rights to be educated in an English school system. So you can see the difficulty and the sensitivity with which the federal government has moved, and the wording of Section 23 simply reflects what the 10 Premiers arrived at in their meetings at St. Andrews and again at Montreal.
Mr. Townshend: But of course it does have the flaw that it does discriminate against Canadian citizens in at least three different ways and that is not something …
Mr. Mackasey: And we are looking at the wording and the fact that you have mentioned it is useful. I am simply saying that unless there is total freedom of choice it will discriminate against somebody, that person, under whatever formula we adopt, that does not have that freedom, so there must be an element of discrimination.
Finally, I know that my time is just about up, Mr. Chairman, I just want to say that I think you have been a refreshing witness. It is obvious that you not only enjoy your job but you have your dedication to a multicultural society. I think you probably know that one of the favourite authors of President Kennedy was Fark, an anthropologist, who took our native peoples, our aboriginal peoples for a study in some of the books that President Kennedy read so passionately and he made an observation which I think you made in your own way that there is a Canadian culture evolving in this country and it is a reflection of all our cultures, not only the French and the English and the aboriginal people but all of the other wonderful people that came here. I think the point that Fark makes is fascinating, that it is impossible to determine what the main culture, the Canadian culture will retain or reject as it comes into contact with the other cultures.
I just hope that you keep fighting the good battle for multiculturalism and do not worry about internal memoranda. Just keep provoking the Minister into action.
Mr. Oberle: The way I see you sitting there speaking as freely as you do I tend to agree with you, and I compliment you on your courage and conviction, not that I think your are in any imminent danger for being here.
But, nevertheless, I do find it curious that all of this happened, and on November 25 your thoughts about the constitution which emanated from the study of the ad hoc Committee were very well fixed in your mind, yet you did not know at that time whether you would be appearing before the Committee.
You did say, in your testimony, that since you became the Chairman of the Multicultural Council in April, your relationship with the Minister has been one of cooperation and support and whatever.
So, were you in any way surprised when the bill was laid before the House, having made all these far reaching recommendations with respect to the appointment of a Commissioner of multiculturalism, a Ministry of Culture-and I agree with you that these kinds of things would not lend themselves
to this bill; certainly, your thoughts with respect to entrenching or giving recognition to the ideals of multiculturalism, the acceptance of history and tradition which were inherent in the earlier appearances of Ministers in 1971: were you surprised that there was no reference whatever in this bill, despite all the recommendations that you and your Council of 100 good Canadian citizens from all parts of the country have made to the Minister?
There was no reference at all even though you had said in your earlier testimony that the Minister had always been very receptive to your ideas.
Were you somewhat surprised or disappointed and disappointed and did you express your feelings to him?
Mr. Decore: Well, I was not particularly joyful about the fact that multiculturalism was not in some way reflected in that document.
But is that not what this whole process is about, that you are here, I am here, for you to listen to people like us and there after to make recommendations to Parliament?
I think this is a terrific process.
Mr. Oberle: Yes, but to take you back to the question, you had direct input to the people who drafted the legislation or the resolution that this Committee is now trying to improve, and to study and to assure that all legitimate interests and aspirations of Canadians from all different sectors of our democracy are protected.
So you had direct input and you must have been—I would have been—and I might ask at this stage, am I badgering you at this point? Am I doing okay?
Mr. Mackasey: When you are I will let you know.
The Joint Chairman (Mr. Joyal): Mr. Oberle, I think you should address the Chair if you are seeking such an opinion.
Mr. Oberle: That proves my naivety, Mr. Chairman, and I apologize to you.
So, I am still saying I am somewhat surprised at, even though you had direct input, you have been assured of the Minister’s co-operation and acceptance of the idea of the consultative body, yet nothing in this resolution makes any mention of the term “multiculturalism”.
Mr. Townshend: Of course, one of the problems is where to put it, that is why we are here urging you to have a preamble. There is no preamble to this particular resolution. That is why I thought it would have appeared.
In a sense, you could say we are disappointed that there is no preamble.
Mr. Oberle: But you are making other recommendations as well. Yours is one of the few brief which makes recommendations as to how to better draft some of the sections of the resolution and you are embracing the word “multiculturalism”
in several sections and you make some very significant recommendations.
So that this is not just in the preamble, but in the sections themselves, that is where you are making very important recommendations, and I hope, indeed, the Committee will find it, in their wisdom to make these changes on behalf of the cause that we both support.
May I ask you, sir, again talking about this report of the ad hoc Committee, what in it could have been so embarrassing that it would not lend itself to the study of this Committee?
Mr. Mackasey: A point of order, Mr. Chairman. There is nothing in the document which was circulated which indicated that the witness thought that the contents were embarrassing. Those were the observations of the executive assistant.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey.
Will you conclude, Mr. Oberle, shortly?
Mr. Oberle: Yes.
Rather than talking about any components which were embarrassing, may I ask you who made the final choice and when was the choice made as to the kind of recommendations which were in the ad hoc Committee report, which one of those recommendations should be put into your brief and which of these recommendations should be left out? Who made that decision and when was it made?
Mr. Decore: The final brief, Mr. Chairman, is substantially different from the ad hoc Committee’s report.
I have already outlined one of the suggestions we made to the Minister which I now think was unworkable. At that time I thought it was workable, but now I think we were wrong in that belief.
When you brought forward this document, again, I repeat, sir, this document was not yet tabled.
We were not able to respond to this resolution. We were simply setting out concerns that we thought existed in kind of a global way of complete constitutional package which would come forward.
Well, a complete package did not come forward. There are three or four specific issues that you are dealing with. So we went back to the drawing table and used that document as a working paper for a new position and another document called Multiculturalism, the Next Step and we had an ad hoc Committee on the constitution bringing forward other suggestions, and we went to an expert on constitutional matters when we knew what this was and asked him for input, so we collated all of these things and looked at it again and tried to interpret what the political mood of the country was and came forward with that today is our brief.
So there is nothing sinister or hidden. It is part of the process of developing a position, and I feel quite comfortable.
Mr. Epp: […] I would like to spend a minute with you on this. I think-and I agree with you-I see society evolving and you cannot necessarily do today what you theoretically would like to do because of other pragmatic problems. I think that is the essence of government to a great extent.
In 1971 the declaration-and Mr. Mackasey used the phrase “gave it legal form”; I think, in fairness, it did not give it legal form in terms of a statute, but I gather that this is the policy; and we have come some way since 1971 in terms of the recognition that a country is more than simply economics or a geographical area or even numerically people.
There are more matters which keep us together.
I thought—and I say this frankly to you—that our first opportunity to give it some legal effect was in the Immigration Act, because at that time we had a statement of purpose and I thought the Immigration Act was the best place to start, because if immigration does not enhance multiculturalism, what government policy is better suited to do exactly that.
We failed at that time to convince the government—and I do not want to thresh old straw. But we missed an opportunity, looking back on it in that that was not done. Now I do not wish to miss this opportunity.
I say to you quite frankly that I would like to see the concept of multiculturalism enshrined in the constitution, and I think even that concept would have to be evolved somewhat, even once it was in the constitution in terms of what it really means in our future together.
What I am interested in—and I have stated pretty clearly the way I think we should go, and having some responsibilities in that area from this side-what I would like to know from you is this: do you feel we have now reached the point where other people, such as this present government as well–do you have the feeling now that there is enough of an awareness through the work of this Committee and the government itself, that collectively, jointly, we can get that concept put into our constitution as we amend it?
Mr. Decore: Mr. Chairman, we had a unique experience in May of this year. Our Executive Committee travelled to St. John’s, Newfoundland. For two days beforehand, I and another gentlemen travelled around Conception Bay and stopped at some of the fish plants and talked to the people.
First of all, I did not know very much about Newfoundland. That was the first time I had ever been there. When somebody told me that there was a unique culture, a Newfoundland culture, I discounted that. But I am convinced that there is. I think it is a tremendous culture and a most interesting kind of lifestyle.
I found it was closer to travel to London and to Paris from St. John’s, Newfoundland, than it was to go back to Edmonton, my home. That is kind of earth shattering. I suppose I should have known that from my history. But it was then that I came to the reality of that fact.
Many people in Newfoundland did not even know that there was 700,000 Canadians of Italian origin living in Toronto.
Most Albertans do not know that there are 500,000 or 600,000 Newfoundlanders living on an island with a distinct culture.
Many Newfoundlanders do not know that there are some 600,000 Canadians of Ukrainian origin living mostly in Western Canada.
What I am trying to say is that even I have not been able to articulate the concept well enough for Canadians to fully appreciate and realize how immense this country is and how wonderful it is.
So, there are a lot of things which have to be done. Our Council was trying to do some of those things and putting it into the constitution is one of the important aspects.
December 19, 1980, Mr. Oberle, Professor Bongart, Mr. Waddell, Mr. Kiesewalter, Mr. Grenke, Mr. Mackasey, Mr. Epp, Mr. Knodel, Mr. Lapierre, Mr. Friesen, 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. 30, p. 15 (click HERE)
Mr. Blakeney: […] I do not object to the constitutional entrenchment of French and English language rights. The right of use French or English or the rights to receive some government services in either of these languages is not, after all, a right we claim as humans. It is a right we claim as Canadians. It is an essential fact of Canada, an essential element of the Confederation bargain and as such is an obvious candidate for inclusion in the constitution.
In endorsing the recognition of French and English as Canada’s two official languages I want to emphasize the importance we in Saskatchewan attach to Canada’s cultural diversity. Two languages, cultural diversity. Saskatchewan is the only province in which those of British and French origin combined form less than half of the population. That makes us particularly conscious of our multicultural heritage, and it gives us a strong commitment to policies and programs that will ensure the continued vitality of languages and cultures other than French and English, all the while agreeing that this is a country of two official languages.
We ought to be examining some constitutional recognition of multiculturalism, perhaps in a preamble, if we are going to have a Charter of Rights, as discussed last summer, or perhaps in some other section. In any case, it should be the subject of early discussion in the next round of negotiations, and I am not now talking about what is included in this round.
January 6, 1981, 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. 32, p. 14 (click HERE)
January 8, 1981, Senator Connolly, Professir Cohen, 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. 34, p. 96 (click HERE)
Senator Connolly: Question No. 2 deals not with the individual, but with collective rights, with group rights, and as I see it there are four categories of these that are dealt with in the document: linguistic rights, which originally are in Section 93 of the British North America Act, but seem to be in Sections 16 to 23 here; secondly, denominational rights, particularly in respect of schools, they are dealt with in Section 133, as you know, of the British North America Act.
Professor Cohen: I am very sorry, it is the reverse, Section 93 and Section 133.
Senator Connolly: Sorry. It is just the other way around, yes.
And there is nothing here directly about denominational rights, except in the sense that Mr. McGrath talked about in connection with the possible changes that might come as a result of the application of the formula or a referendum.
The third group are native rights, they are obliquely referred to in Section 24; the fourth group I think perhaps I categorize as ethnic rights.
Now, I wonder whether there might be some sense in redrafting, if we get to that stage of it, where we have a heading in the document talking about “group rights” or “collective rights” as distinct from the individual rights that are referred to in Sections 2 to 15, because while I have mentioned four different groups, there may be many other groups, undoubtedly there are many other groups that would like to see some reference to their immediate requirements in a constitutional document, and if we are to provide a framework do you think we should have such a framework in a document as it is being redrafted?
Professor Cohen: Well, thank you, Senator Connolly.
On your first question of enforcement, if you would be kind enough to look at the section on enforcement which the Congress brief submitted on pages 14 and 15, you will see there that we have strongly recommended that the Charter reflect the obligation of Canada under the 1966 U.N. Covenant on Political and Civil Rights which provides, under Article 9(5) that states members who are signatory to the covenant provide for enforcement procedures and we have
drafted a Section 25(a) which we hope this Committee will take notice of.
Senator Connolly: What is the section in the International…
Professor Cohen: The International Covenant, Article 9(5). The enforcement and compensation one, and we have drafted Section 25(a) for your consideration and hope that you will look at it.
If you do not mind, Senator Connolly, I will give you a brief but very inadequate answer to your second question. The classical Anglo-Canadian, Franco-Canadian civil rights tradition has been individual, not collective rights. You and I had rights, the group as such was not known other than very, very special cases, I suppose. We did not have minority treaties as they had in eastern and central Europe. That was very unfamiliar ground to us.
However, life changes that and we now have, it seems to me, a political acceptance in Canada that there are a form of group identification that deserves constitutional treatment, native rights is one. We have it in the BNA Act, as you pointed out, in Section 93 and Section 133. And therefore, it does not surprise me that we should have reflection of that, and your Committee will have to look closely at the extent to which you could have it, but the final question you put before me is a more difficult one.
I have had this put before me before, Mr. Chairman, and I am sure you have had it in a much more sophisticated form. We have an official multicultural policy in Canada. Does one transmute that generalized multicultural concept into a constitutional concept? That is a very difficult question.
My initial response is to say: “Let us by all means support multiculturalism, but if you ever entrench it, you are opening a series of doors that may be very difficult to manage, both politically, financially and legally. The provinces will have great trouble in handling many otherwise thoroughly integrated Canadian minorities who want their own particular cultural image reflected in the school curriculum, in teaching rights, etc., etc., etc.
I suspect, Mr. Chairman, that though all Canadians in this multi-ethnic society strongly support most ethnic cultural policies, it is quite another step to entrench them in a constitution per se.
January 12, 1981, Mr. Jean Chrétien, 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, p. 18 (click HERE)
The Honourable Jean Chrétien (Minister of Justice): […] Multiculturalism:
You have received submissions from witnesses representing ethnic groups, be they Canadians of German, Italian, Polish or Ukrainian origin making up part of the Canadian mosaic. You have also heard from the Canadian Consultative Council on Multiculturalism. They have all supported the enshrining of a strong Charter of Rights. They have also asked that some provision be made to protect the multiculturalism nature of Canada.
I would like to see an amendment which would provide a new section which would state:
This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
January 20, 1981, Mr. Epp, 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. 41, p. 100 (click HERE)
Mr. Epp: […] Further to Clause 25 we propose the following amendment:
Any rights or freedoms that may pertain to any cultural community.
And members will notice quickly that that is an attempt to strengthen the multicultural reality, one which the government has recognized in its amendments and we believe this simply strengthens what the government has already agreed to earlier. It affirms the rights and freedoms enjoyed by various cultural groups whose preservation is important to ensure the vitality of Canada.
January 29, 1981, Mr. Robinson 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. 48, p. 16 (click HERE)
Mr. Robinson (Burnaby) moved.—That the proposed amendment adding a new clause immediately following line 10 on page 8 of the proposed Constitution Act, 1980 be amended by striking out everything immediately following the words “interpreted in a manner” and substituting the following:
(a) is consistent with the preservation and enhancement of the multicultural heritage of Canadians; and
(b) ensures the distinct cultural. economic and linguistic identities of the aboriginal peoples of Canada.”
By unanimous consent, the amendment and the subamendment were allowed to stand.
January 31, 1981, Mr. Epp, Mr. Corbin, Mr. Robinson, Mr. Chrétien, Mr. Munro, Mr. Roger Tassé, Mr. Hawkes, Mr. Nystrom, 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. 50, p. 4 (click HERE)
The Committee resumed consideration of the amendment Of Mr. Irwin,—That the proposed Constitution Act, 1980 be amended by
(a) adding immediately after line 10 on page 8 the following:
“26. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”; and
(b) renumbering the subsequent clauses accordingly. and the subamendment of Mr. Robinson (Burnaby),—That the proposed amendment adding a new clause immediately following line 10 on page 8 of the proposed Constitution Act, 1980 be amended by striking out everything immediately following the words “interpreted in a manner” and substituting the following:
(a) is consistent with the preservation and enhancement of the multicultural heritage Of Canadians; and
(b) ensures the distinct cultural, economic and linguistic identities of the aboriginal peoples of Canada.”
Mr. Epp: Thank you, Mr. Chairman. In introducing our amendment we do this not only with a great deal of pleasure but also with a lot of forethought.
Mr. Chairman, I think we have to go back somewhat, at least well before 1971., For many Canadians whose heritage is not either of the English or the French background, for many of them they have felt for a long period of time that if one refers to the fact that in our Confederation of 1867 that Canada was founded on the basis of two founding peoples, and as of yesterday I think we have rectified that historical record that there were three, that if that is a statement of historical fact, namely that it is a statement that points to the period of the 1860s and specifically to 1867, then that statement is correct, but it does not reflect the full history and the full heritage of our country, and that there were many areas of the country, especially so in Western Canada but notwithstanding that in other parts of Canada as well, that there were areas of
Canada that were pioneered, first settled by people who came to this country whose background was not the ones I have already mentioned, but that they came to this country because of opportunity. They came to this country because of opportunities and the freedoms that Canada afforded them and so Canadian history has been dotted since these early days by people who came into the country to open up areas that at that time were isolated, areas that had a lot of promise but which needed the vigour and which needed the dedication of those who came.
I will not go into that history because I think every Canadian who has studied the development of our country recognizes the contribution of people whose names did not flow from the lips of Canadians in the traditional way as we have come to know them in Upper and Lower Canada.
That being the case, Mr. Chairman, in 1971 when it was declared that official government policy was one based on multiculturalism, many of us felt that multiculturalism had been a fact of our daily living well before any government declared it in a policy. For many of us our first language was not the language of either the English or the French but a language which our forefathers or our parents had brought from countries across the sea.
In the past some of us have tried to recognize in legislative form the multicultural fact.
I would say the most striking effort of that period was a debate on the new immigration bill.
We felt that the new immigration bill, when we looked at the objectives of immigration, that obviously, one of those objectives had to be the enhancement of the multicultural mosaic of Canada. It is one thing to give lip service to it; it another thing to recognize it.
I was concerned when the first draft of the government’s proposal did not include multiculturalism. We had a number of witnesses—and I would not mention the groups for fear of leaving others out because their testimony was of equal value—who said that if our constitution was to reflect the reality and history of Canada, the multicultural fact should be included.
The Minister, I now say, has included an amendment on his own, an amendment very close to ours.
I appreciate that the Minister has gone that route. It has been our purpose, which we have stated at the very outset—that is, we would be moving an amendment on the multicultural fact; and it is with that intention that we move it this morning.
Mr. Corbin: Mr. Chairman, I move:
That the proposed Constitution Act, 1980 be amended by,
(a) adding immediately after line 10 on page 8, the following:
“26. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians;” and
(b) renumbering the subsequent clauses accordingly.
Mr. Robinson: Mr. Chairman, the purpose of the subamendment is to provide some guidance to the courts that, when considering the Charter, they should also make it very clear that in any difficulties of interpretation or any ambiguities of interpretation that, not only is the Charter interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, recognizing the cultural plurality of Canada, but also in interpreting the Charter that it is interpreted in a manner which ensures that the distinct cultural, economic and linguistic identities of the aboriginal peoples of Canada are, indeed, preserved.
As I say, it is largely an interpretive section and not a substantive one, and the government has already proposed a number of substantive matters dealing with treaty and aboriginal rights, and this is merely a guide to the courts that in their interpretation of the proposed Charter of Rights they should make very sure both that our multicultural heritage is preserved and enhanced and also that the distinct culture of the aboriginal peoples of Canada, the Indians, the Inuits and Metis peoples of Canada, is preserved.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
The honourable the Minister of Justice.
Mr. Chrétien: Mr. Joint Chairman, yesterday we adopted Clause 24 for interpretation. I would not recommend that we accept this amendment because Clause 26 is for one clear purpose and it is related to the multiculturalism, the finishing and protections in the constitution.
So I do not want to complicate that clause, that is a different problem, of a different aspect, as we have a clause for aboriginal peoples that was agreed on yesterday and so on; so
it is unnecessary; it is adding to what is a clear statement, and I think why complicate matters? Let us have the aboriginal problems dealt with in other clauses. This is multiculturalism and so on, for people to read it, it will be much less confusing; and it is absolutely unnecessary.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. Mr. Munro followed by Mr. Corbin and Mr. Hawkes. Mr. Munro.
Mr. Munro: Thank you, Mr. Chairman. This is a point of order I propose really. I think there is a lack of concordance between the English and French text here which Mr. Robinson might wish to examine more closely.
Under (a) in the French text, in the second line of the French text the words read: “du patrimoine culturel des Canadiens;” whereas in English it is “enhancement of the multicultural heritage of Canadians”.
The Joint Chairman (Mr. Joyal): You are perfectly right, Mr. Munro, I think the words should read “patrimoine multiculturel des Canadiens;” since in the English text we have “multicultural heritage”; and I think that everyone will understand that we are dealing with multiculturalism and not simply cultural heritage. It is quite clear.
Thank you, Mr. Munro. I see that Mr. Robinson is agreeing.
Mr. Corbin: Thank you, Mr. Chairman.
I would like to ask the Minister or his officials if the adoption of this clause would introduce elements of discrimination, on the one hand, between the entrenchment of rights for multicultural groups as opposed to both official language groups who have rights which are totally or partially recognized by virtue of the clauses we have already adopted in this charter.
Mr. Chrétien: Well, we have examined that problem and the interpretation we have is to the effect that it does not create the kind of problem you are thinking about, Mr. Corbin. Perhaps Mr. Tasse would like to give a more detailed explanation.
Mr. Roger Tassé, Q.C. (Deputy Minister of Justice): Mr. Chairman, the Committee has already adopted a provision to the effect that we will continue to be protected or the charter will not affect the rights which otherwise might exist in Canada.
If I look at the brochure, Clause 25 which was discussed a little earlier protects those rights which exist in Canada.
So the rule we are talking about here would rather be a question of interpretation of the charter itself and, fundamentally, it is a suggestion the charter is making to the courts; when a question is raised about the interpretation of the charter, they will have to try to interpret the charter in a manner consistent with the objective we have in that clause.
Mr. Corbin: Twenty-five.
Mr. Tassé: Clause 26.
Mr. Corbin: This question is important, Mr. Minister, because on the one hand you have heard the representations of Francophone linguistic minority groups who do not consider they have acquired language rights as equally as the Anglophones have all across the country.
On the other hand, I was also saying that we now want to guarantee those provisions of which the objective is to preserve and recognize rights to a multicultural heritage.
If I understand the term “multicultural” correctly, it does not necessarily imply there is a linguistic group. It must be interpreted in a very broad way and that might include, for example, a multicultural heritage which could also work in the English language, in the French language and in other languages of other ethnic groups.
Mr. Chrétien: Exactly. It does not necessarily tie in to a question of language.
For example, you could talk about French-speaking multiculturalism in Quebec or in certain areas. There are ethnic groups which belong to the French-speaking linguistic community such as Haitians, for example, who are Francophones but who also belong to an ethnic group whose skin colour is different from ours but who speak the same language and you have the same problem in English when you have people . . .
Mr. Mackasey: The Irish.
Mr. Chrétien: The Irish, the people who come from India, for example, or from Pakistan whose skin colour is different from ours but who, in Vancouver or in Toronto, are of the English language group which is the other official language of this country.
So the problem is quite different. Multiculturalism is not a question of the official languages of Canada which are French and English. French-speaking as well as English-speaking people can have very different heritages.
Mr. Corbin: Thank you, Mr. Minister. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin.
Mr. Hawkes: Thank you, Mr. Chairman.
My questions I think are directed to Mr. Robinson more than the Minister, to his subamendment, but in the main clause I think there is a very important principle that we not only preserve the multicultural nature of Canada but that that be enhanced; and in Mr. Robinson’s amendment and in his explanation I detected I think a thrust towards freezing at a moment in time the existence of the identity of the aboriginal peoples of Canada and a lack of a sort of a tone in his amendment that would enhance the development and the change.
I wonder if that is intended, Mr. Robinson? If it is, I think it is inconsistent with the kinds of briefs that were presented by the witnesses as they appeared before us.
Mr. Robinson: Mr. Chairman, through you to Mr. Hawkes, this amendment in fact was reviewed and supported representatives of the Indian, Inuit and Metis communities and is
certainly not intended to in any way suggest that the identity that we are talking about, the linguistic, economic and cultural identity in any way should be frozen, but the emphasis I think in the amendment would really be ensuring the distinct identities of the aboriginal peoples of Canada. Naturally as that evolves through time we would seek to ensure that that would be enhanced just as subclause (a) deals with the preservation and enhancement of the multicultural heritage of Canadians.
As I say, this has been drafted in consultation with those groups who appeared before us, and certainly has their support.
Mr. Hawkes: If we could go a step further, the choice of cultural, economic and linguistic, I think perhaps the Minister overstated the case a minute or two ago when he sort of downplayed the importance of language in the enhancement and preservation of a cultural identity; but the one in your list, Mr. Robinson, that gives me particular trouble is the notion of economic identity, and I am wondering if you could give us some explanation. Is this a term which is characteristically found in legal documents of this kind and could you give us some sense of what you think that economic identity that should be ensured really is?
Mr. Robinson: Mr. Chairman, again through you to Mr. Hawkes, as I have indicated this amendment was drafted in consultation with representatives of the Indian, Inuit and Metis peoples and my understanding of the purpose of the reference to economic identity, as you will recall, Mr. Hawkes, again through you, Mr. Chairman, group after group who appeared before us stressed the importance of having an underlying economic base. If their other rights, particularly the cultural and linguistic rights, must be preserved and enhanced, but if they did not have an economic base that all else was secondary and perhaps the use of the words “economic identity” in this context is not as precise as might be desirable but the intent is to ensure that the Charter is interpreted in a way which would not in any way denigrate from this important question of the need for an economic base. I think perhaps in the context of the charter one might look back at the full area of mobility rights, for example; and when interpreting Section 6 on mobility rights one would want to ensure that that was interpreted in a way which did not erode the important economic identity of the aboriginal peoples and their ability to preserve and enhance their cultural and linguistic identities.
Mr. Hawkes: Through you, Mr. Chairman, I am wondering if Mr. Robinson is recalling the thrust of the testimony of those 17 groups, and the very clear statement by every one of those groups that the economic survival and enhancement was related to the enjoyment of property; and in fact economic survival was related to land claims and having a land base for the development and enhancement of their culture, I find this somewhat inconsistent to use a generalized term like economic identity when there was a set of specific words available in the phrase “enjoyment of property” which could be applied to aboriginal people and to all Canadians; and you and your party have seen fit to argue persuasively to the government to deny all Canadians, including aboriginal peoples, the kind of
protection which that kind of clause would provide for them in a charter of rights.
I am wondering how you square their desire for defining their economic identity in terms of land with your desire to deny that in the Charter.
Mr. Robinson: Through you, Mr. Chairman, to Mr. Hawkes, I am sure that Mr. Hawkes would recognize, upon reflection, that were there to be the inclusion of the reference to enjoyment of property, whatever that means, that in many ways this could represent a significant threat to the economic base of native communities and not the opposite, an enhancement of that, because in this amendment put forward by the Conservative Party there was no suggestion that, along with the enjoyment of property, there were certain responsibilities; for example, to ensure that while INCO is enjoying its property, it is not in any way eroding the rights of native communities, who may live near the community where they are busy enjoying their property; and that while the corporate sectorion Northern British Columbia is enjoying its property, it is not polluting the beautiful waters of Northern British Columbia and thereby destroying the fishing grounds, as AMAX is proposing to do.
Under the guise of enjoyment of property, many of the rights which Mr. Hawkes, I am sure, believes native communities should enjoy could in fact be significantly eroded.
The Joint Chairman (Mr. Joyal): Mr. Hawkes, I would like to invite Mr. Robinson to conclude, so that the Chair will be in a position to call the vote on the proposed subamendment.
Mr. Robinson: Mr. Chairman, I really do not have anything to add to the remarks I made earlier. I believe that it is important that, as this Charter is interpreted, that we look not only at the preservation and enhancement of multicultural heritage of Canadians, but also that we should specifically flag the vital importance of ensuring the distinct cultural, economic and linguistic identities and that the courts should be signalled very clearly that we, as a Committee, and that we as Parliament recognize the fundamental importance of preserving and enhancing those cultures as well.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
I see that honourable members are ready for the question. Amendment negatived.
I would like to invite honourable members to come back on the main amendment.
Mr. Nystrom, you had a question on the main amendment?
Mr. Nystrom: I just really wanted to say something in about one minute, Mr. Chairman. I believe that the main amendment is in here on multiculturalism, the coming from the part of the country that I do where, in my constituency, the English and French population combined are in the minority, and I think Saskatchewan as a province is the only province in the country where the English and French population are in the minority, and I just thought that coming from a province such as Saskatchewan, I wanted to point out how much the majority
of the people in my province appreciate making reference to the multicultural heritage of Canada.
I think it is something that is very useful and very, very unifying to include in the constitution of Canada and I just wanted to let the Committee members know of the appreciation that I think people of many different cultures and heritages have across this country.
February 17, 1981, Debate in the House of Commons (click HERE)
February 19, 1981, Debate in the House of Commons (click HERE)
February 20, 1981, Debate in the House of Commons (click HERE)
March 5, 1981, Debate in the House of Commons (click HERE)
March 10, 1981, Debate in the House of Commons (click HERE)
March 11, 1981, Debate in the House of Commons (click HERE)
March 16, 1981, Debate in the House of Commons (click HERE)
March 19, 1981, Debate in the House of Commons (click HERE)
March 19, 1981, Debate in the Senate (click HERE)
March 26, 1981, Debate in the Senate (click HERE)
April 22, 1981, Debate in the House of Commons (click HERE)
April 23, 1981, Debate in the House of Commons (click HERE)
November 20, 1981, Debate in the House of Commons (click HERE)
November 23, 1981, Debate in the House of Commons (click HERE)
November 27, 1981, Debate in the House of Commons (click HERE)
March 23, 1982, Debate in the House of Lords (UK) (click HERE)
Previous Versions of this Report: [Version 1]