REPORT: Equality of the Sexes, Section 28 of the Constitution Act, 1982
Date: 2022-02-15 [Updated: 2023-07-26]
Citation: PrimaryDocuments.ca, Section 28, Equality of the Sexes: Compilation of primary documents to assist in interpreting the public meaning of Section 28 of the Constitution Act, 1982, Second Ed. (July 2023).
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Equality of the Sexes
Compilation of primary documents to assist in interpreting the public meaning of Section 28 of the Constitution Act, 1982
Short Table of Contents
Part 1: The Drafting History of the Charter of Rights and Freedoms Pertaining to Section 28’s Public Meaning
Part 2: The Primary Record (Debates, Papers, Committees…) Pertaining to Section 28’s Public Meaning
The Constitution Act, 1982
Part I. Canadian Charter of Rights and Freedoms
Rights guaranteed equally to both sexes
Section 28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Drafting History of the Charter of Rights and Freedoms Pertaining to Section 28’s Public Meaning
Drafts of the Charter of Rights and Freedoms:
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
Drafts of the Charter of Rights and Freedoms
April 23, 1981: House of Commons Draft, used in Reference Re: Resolution to Amend the Constitution
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 9470-9471. Click HERE)
November 18, 1981: House of Commons Draft
28. Notwithstanding anything in this Charter, except section 33, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 12983-13011. Click HERE)
November 24, 1981: House of Commons Draft
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
(Source: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 4128-4130. Click HERE)
November 26, 1981: House of Commons Draft
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
(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)
The Primary Record (Debates, Papers, Committees…) Pertaining to Section 28’s Public Meaning
October 23, 1980, House of Commons Debates (click HERE), p. 4018
November 12, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 3 (click HERE), p. 29
November 13, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 4 (click HERE), p. 58
November 14, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 5, (click HERE), pp. 8, 14
November 18, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 7 (click HERE), p. 109
November 20, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 9, (click HERE), p. 57
November 24, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 11 (click HERE), p. 30, 35, 38
December 5, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue. 20 (click HERE), pp. 7, 17, 22
December 8, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 21 (click HERE), p. 24
December 8, 1980, House of Commons Debates, (click HERE), p. 5500
December 9, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 22 (click HERE), pp. 13, 50
December 11, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 24 (click HERE), pp. 36, 66
December 16, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 27 (click HERE), pp. 114, 117
December 18, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 29 (click HERE), pp. 8, 13, 16
December 19, 1980, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 30 (click HERE), p. 37
January 7, 1981, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 33 (click HERE), pp. 88, 96
January 8, 1981, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 34 (click HERE), p. 123
January 12, 1981, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 36 (click HERE), p. 13
January 22, 1981, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 43 (click HERE), p. 30
January 27, 1981, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 46 (click HERE), pp. 15, 70, 93
January 28, 1981, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 47 (click HERE), p. 8
January 30, 1981, Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 49 (click HERE), p. 45
March 4, 1981, House of Commons Debates, (click HERE), p. 7897
November 2-5, 1981, Federal-Provincial Conference of First Ministers on the Constitution, Text of Opening Remarks by Premier R. Hatfield (click HERE)
November 6, 1981, House of Commons Debates (click HERE), p. 12594
November 9, 1981, House of Commons Debates (click HERE), pp. 12634, 12635
November 16, 1981, House of Commons Debates (click HERE), p. 12777
November 18, 1981, House of Commons Debates (click HERE), p. 12890
November 20, 1981, House of Commons Debates (click HERE), pp. 12978, 129879
November 20, 1981, House of Commons Debates (click HERE), pp. 13043, 13046, 13047, 13049, 13054, 13055, 13060
November 23, 1981, House of Commons Debates (click HERE), pp. 13112, 13123, 13129, 13140
November 24, 1981, House of Commons Debates (click HERE), p. 13195
November 25, 1981, House of Commons Debates (click HERE), p. 13243
October 23, 1980, Pauline Jewett, Benno Friesen, Margaret Mitchell, Donald Blenkarn, Stanley Knowles, & Joe Clark, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons, 32nd Parl, 1st Sess, p. 4018 (click HERE)
Miss Jewett: Furthermore, the suggestion made earlier tonight by the hon. member for Vancouver Centre (Miss Carney) that somehow or other a particular amending formula, the Victoria formula, and not any other such as the Vancouver consensus, might damage British Columbia is, it seems to me, entirely erroneous.
In the first place, for the first two years after the constitution is patriated, there must be unanimity for any amendment to take place, and unanimity includes British Columbia.
In the second place, the Vancouver formula that the Conservative party seems so fond of, would not necessarily favour and, indeed, could abolish, some of British Columbia’s most important or cherished interests if pursued by other provinces in a direction that B.C. did not find desirable.
I gather that the premier is now slowing down a bit and realizes that what is before this House, so far as it concerns British Columbia, is of benefit.
As we all know, however, and as has been spoken of many times, there are deficiencies in this proposed resolution one of which affects a group comprising 52 per cent of the population right across this country. The most alarming deficiency in the resolution and the one I want to talk about tonight and make…
specific recommendations on, is the absence of any guarantee or even mention of women’s human right to equality.
The absence of any mention of women’s human right to equality in the proposed charter of rights and freedoms was brought to the attention of the government as long ago as midsummer in an excellent paper written by Professor Beverley Baines of the law school at Queen’s University, which is 67 pages long, and in another paper prepared by Mary Eberts, a distinguished constitutional lawyer in Toronto, and in a number of shorter papers prepared for the conference on women and the Canadian Constitution that the Canadian Advisory Council on the Status of Women had scheduled but which, unfortunately, could not be held, for the first weekend in September.
The government has lots of opportunity to know why its proposed section 15, ridiculously named non-discrimination rights, was of no benefit to women. Yet the government did nothing.
An hon. Member: Shame.
Miss Jewett: The minister responsible for the status of women does not yet know that there is a problem and the government lawyers–who unfortunately are not the Beverley Baines and Mary Eberts of this world–
Mrs. Mitchell: Are all men.
Miss Jewett: That is true. Those who are preparing the work on the constitution are all men. They do not understand the problem either.
Fortunately, the Canadian Advisory Council on the Status of Women, every one of them a patronage-appointed Grit, had the guts a couple of weeks ago to stand up and say that, as far as women are concerned, this package will not do. For the first time in the many years that the Liberals have been appointing people to that council, they showed their independence.
Mr. Blenkarn: Are you going to vote for it?
Miss Jewett: I should like to put on record now an excerpt from an October 8 press release issued by the Canadian Advisory Council’ on the Status of Women, which reads as follows:
Canadian women should know that their rights are not protected by the federal government’s proposed charter of rights,’ said Doris Anderson, president of the Canadian Advisory Council on the Status of Women, at a press conference in Ottawa today. Unless wording of the charter is revised to guarantee fundamental rights for women, they will continue to risk the kind of discrimination so often experienced in the past.
Clause 15(1) of the charter under discussion reads:
Everyone has the right to equality before the law and to the equal protection of the law—
This wording is inadequate because in every single case in the 1970s when practically the same wording, which is contained in the Diefenbaker Bill of Rights, was being interpreted by the courts, the Supreme Court did not find that women were equal in the law. The Supreme Court either interpreted the “before the law” clause to mean “in the administration of the law”, or else it tried to find some other principle which, in effect, would deny women their equality.
The two most important cases, of course, are the 1973 decision in the Lavell and Bédard case where two Indian women had lost their status because they married non-Indians. As we all know, section 12(1)(b) of the Indian Act states that Indian women who marry non-Indians lose all their claims as Indians. This law does not apply to Indian men who marry non-Indians. In that case the Supreme Court decided that the words “before the law,” that now also appear in clause 15 of this charter, only referred to the administration of the law and not to the law, itself. In 1978 in the famous Bliss case, and basically without going into the details of it because of shortage of time, the court decided that no inequality was being suffered by Stella Bliss in the non-payment of unemployment insurance to her, because the law had resulted in a denial of benefits only to some unemployed pregnant women and not to all of them.
Unless the proposed charter is rewritten, these two decisions will stand as precedents. Nor is it good enough to say, as I understand some government advisers are saying, that once these words are entrenched everything will be all right, because the courts will then say, “it is entrenched now and we have to handle it differently.” That is probably the most ludicrous argument one could imagine. Once precedents are established, courts very rarely change their interpretation.
More important, with the exception of one Supreme Court Justice, at no time have the courts felt that the Canadian Bill of Rights could not overrule other statutes. In all these cases, all justices, with one exception, treated the Canadian Bill of Rights, the Diefenbaker Bill of Rights, as though it were entrenched. In this connection, the famous Drybones case has never been overturned. Thank goodness, we now have bright young women teaching constitutional law in the law schools of Canada, who bring these facts to our attention.
Some hon. Members: Hear, hear!
Miss Jewett: The same is true of the protection of the law clause. The only change in section 15 from the Diefenbaker Bill of Rights is the addition of the word “equal”. So it is now equal protection of the law. That again will not be of very much help, if indeed any help at all. It is a copying of American terminology and a tendency to think highly of American jurisprudence as far as the interpretation of equal protection of the law is concerned. I think this is well taken if one is looking at their interpretation of cases regarding race inequality. But if we look at the interpretation of that clause as far as sex inequality is concerned, we see that it is of no help whatsoever to women.
I must say the Quebec charter of human rights is more enlightened. It does not use the words “before the law” at all. The phrase in French is “en pleine égalité”.
Perhaps that is a phrase we should take into consideration when we are revising the wording in committee.
The courts have striven manfully to find some principle to give—
Mr. Knowles: That is the trouble.
Some hon. Members: Oh, oh!
Mr. Clark: We all make mistakes.
Miss Jewett: On the contrary, manfully, and I mean “man- fully”. The courts have striven manfully to find some principle to give substance the “before the law” clause. They have developed five different principles. I mentioned one particularly, the one saying that “before the law” meant in the administration of the law we were equal. The courts have developed four others. None of them is helpful to women. None promotes a woman’s human right to equality. What the courts need and desperately want is guidance. The message must be very clear from this Parliament, and in the Constitution of Canada, that to use the same words will do no good. A message must be clearly given to the courts by the use of new, different and stronger words, that from now on we do intend women to be treated equally.
If I may, I would like to put on the record now proposed wording. I am not a lawyer, and I have no doubt there are deficiencies in this wording. However, I have made an attempt at least to give expression to what I feel might be a clear message to the Supreme Court and other courts, that what we really want, in a positive and constructive way, is protection of women’s full rights to equality.
I would begin by calling this section not non-discrimination rights because that title refers only to the second subsection, but rather call it the right to equality. By the way, I am now referring to others who will be included in this section as hon. members will hear in a moment.
I would like to see in the first subsection the following:
All persons, men and women alike, shall be equal in the law and before the law without unreasonable distinction based on national or ethnic origin, age or religion.
I stress “equal in the law.” I hope hon. members get my point. “Before the law” has not given us equality. It must be changed. “In the law” is a logical, clear-cut change.
In the second subsection, and I hope other members will agree, I would like to see the following:
Race, sex or other immutable characteristic shall never constitute a reasonable basis for distinction except as provided in subsection 3.
The vital ones are “immutable characteristic.”
The third section I propose I have taken from the Human Rights Act. I think the affirmative action in that act is the best. My proposed third subsection would read:
Nothing in this charter limits the authority of Parliament or a legislature to authorize any program or activity that is designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by any group of individuals when those disadvantages would be based on or related to race, sex or other immutable characteristic of those groups of individuals.
Some hon. Members: Hear, hear!
Miss Jewett: Finally, in my proposed section 15 I would like to see words to the effect that:
Equality is a positive goal to be sought, particularly for women and other disadvantaged peoples, and that evening-up is a necessary process to the achieving of equality.
Some hon. Members: Hear, hear!
Miss Jewett: I hope that all members of the House of Commons, not just all of the women members, although I hope all 14 of us will be together on this as much as we were a few months ago in trying to move for the total equality of Indian women, will join together to make substantive and fundamentally important changes and totally restructure section 15 of the proposed charter.
Unless we do this now, and I am anxious that we get to committee to do it, we will be 100 years more before we get these changes made.
Women in the United States have been fighting since 1924 to get an equal rights amendment in the American constitution. If we bring back the constitution with section 15 as it is now, given the interpretation by the Supreme Court of Canada, we will not, as women, genuinely be able to claim, equality in our society. The likelihood of all of the legislatures getting together with the federal government and amending that section after it has been brought back is somewhat remote.
It is not good enough to say on this, and other vital issues, that we will do it later. The time to do it is now.
Mr. Friesen: Mr. Speaker, since the hon. member for New Westminster-Coquitlam (Miss Jewett) has some time left, would she permit a question?
Mr. Deputy Speaker: Would the hon. member for New Westminster-Coquitlam (Miss Jewett) accept a question from the hon. member for Surrey-White Rock-North Delta (Mr. Friesen)?
Miss Jewett: Yes, Mr. Speaker.
Mr. Friesen: Mr. Speaker, the hon. member indicated, and I agree with her, that the courts are not very good institutions”: for reform, which is precisely the argument the head of the Civil Liberties Association has made. Therefore, entrenchment is not an enhancement to people’s rights. Why does the hon. member plan to vote for entrenchment if this is a deterrent to reform? If there are so many flaws in this proposal, why is it such a civilized document?
Miss Jewett: On the last point, to be quite frank, my indictment includes all you guys, too. You have never read or studied the wording of the proposed charter nor have members on the government side. Most of you have never really studied or read any of the cases wherein that wording was interpreted detrimentally to women.
Mr. Deputy Speaker: With all due respect to the hon. member, her remarks should be addressed to the Chair.
November 12, 1980, Svend Robinson, 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. 3, p. 29 (click HERE)
Mr. Robinson: The International Covenant, if you accept that as being a guideline which the court should accept, under the International Covenant, there could never be even in time of war or apprehended insurrection, for example, discrimination on the basis of race, colour, sex, language, religion or social origin. There can never be the use of torture or cruel and unusual punishment.
Now, Mr. Minister, would you be prepared to consider an amendment to section one of this Charter to at least bring it into conformity with those minimum guidelines which we have accepted under the International Treaty.
Mr. Chrétien: You are asking me the question, but if you have some very precise suggestion I am willing to consider that of course, but, as we say, the Charter of Rights is a minimum, it is not an absolute.
There will be other legislation in terms of human rights that will be formulated by different levels of government. One restriction that we are suggesting in this Bill of Rights was to find now the equilibrium in the discussions that we had with the Auditor Generals in the summer, that it was more or less acceptable at that time. If it is a minimum, we can always improve on it.
November 13, 1980, Svend Robinson & 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. 4, p. 58 (click HERE)
Mr. Robinson: […] Mr. Minister, why should it be that the anti-discrimination rights, the rights to be protected from discrimination on the basis of religion, age, sex, and so on, which are protected as being fundamental in the International Covenant on Civil and
Political Rights, why should they be subject to what is generally acceptable in a free and democratic society; because if that were the test, then surely it would be possible to have the abuse that we have had of Canadians of Japanese origin during and after World War II who were interned and whose property was confiscated. Frankly, I believe the Prime Minister himself has indicated that this was a blot on the history of Canadian society.
Mr. Minister, that kind of thing would be permitted under Section 1, because it would permit the violation of the International Covenant on Civil and Political Rights, and l would hope the Minister would be prepared to indicate today that you are open to an amendment which would at least bring this section into conformity with our obligations under the International Covenant on Civil and Political Rights which your Deputy Minister indicated yesterday should guide the courts in their interpretation of this section in an event?
Mr. Chrétien: You know, Mr. Robinson, that is a very difficult question, because we had a very long debate this summer with the provinces on the application of the Charter of Rights.
We did not come to any formal agreement with the provinces, but that was the main topic of discussion among officials and Ministers during the summer. And as the Administrator of the Criminal Code—the Attorney General and so on—we put that rider, if I may use that term, interpreting the charter. It was very much in the light of the discussions we had with the provinces, that this was more acceptable to them than just having a Charter of Rights of full application, using the term in the traditional way.
Speaking for myself, I can say that we are very strongly committed to having a Charter of Rights in Canada and we would like to have one which is as effective as possible; but at the same time, we had to take into consideration the views of the provinces and that is the reason why, eventually, we have accepted a reasonable limit which is generally accepted in a free and democratic society with a Parliamentary system of government. It was the general orientation and guidance given to the courts to interpret this charter, and it was acceptable to the participants of the summer conference in relation to a Charter of Rights, if adopted; and that is why it is there.
Now, if you are telling me that I should bypass the views of the Attorney General on that matter and just impose strictly and simply a Charter of Rights without any help to the courts as to interpretation, then you are asking me to take a hell of a big step.
November 14, 1980, R. G. L. Fairweather (Chief Commissioner of Canadian Human Rights Commission), 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. 5, p. 8 (click HERE)
Mr. Fairweather: [..]We ask you to change Section 15 of the Charter to a general proscription of discrimination with no grounds listed. Failing that, I believe the list should be expanded to include physical and mentally handicapped, marital status, situation de la
famille, sexual orientation and political belief. And may I remind the Committee that this is the non-discrimination section that I am dealing with, that having an inclusive list does not thereby say that the Canadian Human Rights Commission or Parliament is making any statement about sexual preferences or political beliefs, or so on, it is saying that people should not be denied employment opportunities because of these beliefs. Sometimes this is mixed up and I get letters from people saying we are advocating a certain lifestyle or a certain preference. It is not my business to advocate, or my colleagues. You would rightly be outraged if we were in the business of advocating lifestyle.
The charter of rights should contain an explicit reference to the rights of women. We suggest adding the following unequivocable principle:
this charter guarantees the equal right of men and women to the enjoyment of the rights and freedoms set out in it.
Scholars will know, and deputies and senators will know this is not special language, it comes from international treaties now ratified by Canada.
Svend Robinson & R.G.L. Fairweather, p. 14
Mr. Robinson: I would like to turn to a question I raised yesterday, namely, taking up your suggestion that one of the purposes of a Charter of Rights is to protect the weak from the strong and to protect minorities from what is sometimes called the tyranny of the majority.
Are you aware of the referendum process envisaged by this particular charter which would permit a simple majority in this land to take away the rights that now exist within this charter?
Are you aware of that provision, and do you care to comment on whether that is desirable in a Charter of Rights?
Mr. Fairweather: I am bound to confess I had not believed that the referendum mechanism could be used to deny minority rights enjoyed and contained in the charter. If the referendum process could do this, then surely this Committee would want some restriction placed upon the referendum.
Mr. Robinson: For your information. there is a provision here which, in the event of a deadlock, would permit an amendment to be made, including the taking away of rights granted in the Charter of Rights, the only requirement being a simple majority and a majority in each of four regions.
But, Mr. Fairweather, I am sure you would confirm that a regional majority does not necessarily protect unpopular minorities, such as religious or ethnic minorities?
Mr. Fairweather: That is true. I hope Messrs. Chairmen this would be understood, that it is not that we did not want to speak to the whole charter. Our own instincts were to do so. Yes, I have to remind myself several times a day that we are not alternate government.
I had thought that the referendum part, just in preparing ourselves for this appearance, (and certain parts) could well be debated by this Committee and other witnesses.
I have not paid very much attention to this, but if, as is suggested by the Member, it is a fact that a simple majority could deny a right, then the referendum section is too broadly drawn. But, surely you would want to attend to that yourselves, I gather.
Mr. Robinson: You would have assumed that it would not be possible by referendum to take away those kinds of rights?
Mr. Fairweather: I had assumed that an entrenched Bill of Rights had meaning for minorities in this country. Otherwise, what are we about here?
Mr. Robinson: Thank you, Mr. Fairweather.
Now, turning to Section 15 of the proposed charter, the section which you have emphasized in your brief, as it is presently worded would you agree that this section fails significantly to ensure equality of status for women in this country?
Mr. Fairweather: I think there are very good reasons to do as we and some others have suggested, to make a specific statement about the rights of women. If I were pressed on this, strictly lawyer to lawyer, I would like to think this is enough.
But a constitution is not only a document of lawyers, but also a document of people, poets and others, at least I hope it is.
I think the clear enunciation we have suggested that come from tested international jurisprudence would protect women better than this.
Mr. Robinson: That is a political . . .
Mr. Fairweather: We are in politics, too. We are in attitudinal change, and not in partisan politics.
Mr. Robinson: Speaking on behalf of the Commission, Mr. Fairweather, in your recommendations you have certainly said the section, as now worded, is not adequate to protect equality of status for women and you have proposed some specific amendments to that section.
Mr. Fairweather: Yes; I have done that, because I am appalled by some of the judicial interpretations which have flown in the face of what most of us believe should be the rights of women in society, and have also flown in the face of Bills of Rights that I know are only federal charters, but I can
reel them off and you know them just as well as I do- Canadian decisions like Laval and Bliss and others which are saddening to those who had hoped that the Supreme Court of Canada could do better.
Mr. Robinson: And, presumably, it is because of those of decisions on the wording as it now exists that you are making your recommendations?
Mr. Fairweather: It is because of these decisions that we must have an entrenched Bill of Rights in this country to remind the judiciary that there have been changes in Canadian society.
There is no mystery about the origin of entrenchment. It will be the statement of the Parliament of Canada about how serious they are about enshrining these rights, and the Bliss and Laval cases as well as the Indian Act cases and so on would be overturned, as they should be.
Mr. Robinson: Presumably, though, you would want to make absolutely sure that, in formulating the wording of the anti-discrimination section, or equality section, that those kinds of decisions could never again be made in interpreting Section 15?
Mr. Fairweather: Exactly; that is why we are here today, Mr. Robinson. Exactly.
Mr. Robinson: Thank you.
November 18, 1980, Lorne Nystrom & Max Cohen (Chairman, Select Committee on the Constitution of Canada of the Canadian Jewish Congress), 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. 7, p. 109 (click HERE)
Mr. Nystrom: Now, you referred earlier to the emergency suggestions you have about the limitation clause-Section 28(a), and you are talking about a two-third vote of parliament being needed to define- “emergency”. If there was an emergency, I understand you would suspend the rights we have in the Charter. Are you talking about a suspension of all the rights in the Charter, or even if you do have an emergency which (you call here a war or domestic insurrection, or natural calamity) is affecting the life and safety of the nation or any part thereof, would there not be an argument for still maintaining the rights?
For example, can we justify, even in that kind of emergency, cruel and unusual punishment, referred to in Section 12 of the resolution, or some of the anti-discrimination stuff in Section 15, based upon sex or national origin?
Professor Cohen: I would have thought that we have not done our homework on this, that is to say the detailed kind of degree of suspension, what might or might not take place, depends upon the degrees of the emergency. We have not thought through the different types of emergency, from a great public health emergency to a natural calamity emergency to an invasion emergency, and that homework has to be done.
November 20, 1980, L. McDonald (President, National Action Committee on the Status of Women), J. Porter (Member of the Executive, National Action Committee on the Status of Women), B. Carr (Member of Executive, National Action Committee on the Status of Women), Flora Macdonald, Pauline Jewett, Bryce Mackasey, Senator Neiman, James McGrath, & Coline Campbell, 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. 57 (click HERE)
Ms. L. McDonald (President, National Action Committee on the Status of Women): Thank you, Mr. Chairman. We will first of all give our written brief, all three of us will be speaking, and I will make some remarks and then we will be available for questioning.
Ms. Porter will begin.
The Joint Chairman (Mr. Joyal): Ms. Porter.
Ms. J. Porter (Member of the Executive, National Action Committee on the Status of Women): Women could be worse off if the proposed charter of rights and freedoms is entrenched in Canada’s constitution. Certainly the present wording will do nothing to protect women from discriminatory legislation, nor relieve inequities that have accumulated in judicial decisions.
Differences between the life patterns of women and men have not been considered by the drafters of the proposed charter. We ask you now to look at the new charter in a different way, from the perspective of over half the population of Canada, to see its deficiencies and to consider amendments to affirm and protect the fundamental rights of equality of women with men.
The National Action Committee on the Status of Women is a voluntary organization working to improve the status of
women in Canada. NAC is an umbrella for more than 150 nongovernmental organizations across the country, some regional, others Canada-wide. It promotes reform in laws and public policies, informs the public about women’s concerns, and fosters co-operation among women’s organizations.
NAC held a public forum on the constitution in Toronto on October 18, 1980, the recommendations from which were considered by the executive and form the basis of this brief. Notably, it was agreed that we support the entrenchment of a charter of rights and freedoms in principle. However, Part I of the constitution act, 1980, would be acceptable only if amendments are made to Sections 1. 15(1) and (2), Section 24 and Section 29(2), and a new section on the supreme court.
NAC has already informed the Minister of Justice of its opposition to moving divorce from federal to provincial jurisdiction. Also in this brief we do not address the division of powers which has wide application, especially in the area of social services. Women have encountered difficulty by interminable referrals back and forth because of federal-provincial sharing of responsibility for financing and administration.
Once again, we are very concerned about this situation but will not be addressing it today.
Ms. L. McDonald: The opening section under guarantee of rights and freedoms falls short of the statement of principle we would expect. imprecise wording in the limitations clause could open the way to a variety of interpretations of permitted exceptions. Indeed, the potential for driving a truck through the clause led our participants at the conference to dub it the “Mack truck clause”.
Failure to clarify the guaranteed rights and freedoms by removing the limiting clause would render useless subsequent sections. Therefore, NAC proposes that the general limiting clause be deleted.
If there have to be restrictions on rights and freedoms in time of war these should be specified as well as those rights and freedoms not to be abridged under any circumstances. NAC recommends that the rights and freedoms not to be abridged under any circumstances should include at least the right not to be subjected to any cruel and unusual treatment or punishment and the human right to equality in the law.
Equality before the law, the wording proposed in the government’s Charter of Rights, and used in the present Canadian Bill of Rights, has been interpreted to mean only that laws, once passed. will be equally applied to all individuals in the category concerned. The law as written could discriminate against women, which is neither just nor acceptable. The courts have been concerned with maintaining the just administration of the law. but not with discrimination built into the law itself. Thus the Supreme Court of Canada decided against Lavell and Bedard, two Indian women who lost their status on marriage to non-status men. If the present wording prevails,
there is no guarantee that Indian women will not continue to be denied equal rights with Indian men.
NAC recommends amendment to provide for equality in the laws themselves, as well as in administration of the laws.
Better still would be a statement that equality is a positive objective, and requiring an “evening-out” process towards its achievement. This would be consistent with the view that freedom from discrimination is a positive human right women are entitled to enjoy. It would discourage a narrow interpretation of equality and prevent objections to affirmative action programs which could lead to costly, time-consuming litigation.
NAC recommends a new clause to specify the human right to equality as a positive objective.
To add to that very briefly, the Canadian government in Copenhagen this summer signed a convention on elimination of all forms of discrimination against women which is much more specific on the positive aspects that equality should be aimed at, including economic equality, at least some measure of reproductive freedom, equal rights and responsibilities in marriage and for child care, a commitment to positive measures, legislation, establishment of courts, administrative measures and national machinery to pursue the objective of equality. Much more positive that what we have in the present charter.
In view of the Stella Bliss case especially, it is clear that more specific directions need to be given to the courts for the interpretation of equality. Notably it is necessary to specify that discrimination on the basis of sex is proscribed whether the law discriminates against all women or only some of them.
NAC recommends the addition of a new clause to Section 15 specifying that discrimination on the basis of specified category is proscribed whether all members of that category are affected or only some.
I am sorry, I have missed Section E on page 4. NAC recommends that the specified categories in Section 15(1) be amended to include marital status, sexual orientation and political belief. We do not elaborate here but these are included in other codes and we would recommend they be included here.
Part I, Section 15(2). We believe that this clause on affirmative action programmes is intended to include women, but nowhere is this expressly stated. Given the sorry record of the courts on women’s rights cases, this is not a matter to be left to judicial discretion. Should affirmative action programmes be
established we do not want to have to spend years in court proving their legality.
The National Action Committee recommends adding to Section 15(2) the words “including women”.
No delay should be necessary in the application of (1) and (2) of Section 15. Advisory councils on the status of women have the necessary inventories of relevant legislation requiring up-dating which could be proceeded with immediately. Therefore, NAC recommends that Section 29(2) be deleted.
Section 24 and Section 25 of the proposed charter actually threaten to entrench unequal rights for native women. Under the present Indian Act men are given special rights to pass on Indian status to a n0n-lndian spouse and their children, while native women are denied the same ability. Indian women indeed lose their status on marriage to a nonstatus spouse, and cannot regain it, even on divorce or widowhood. The spouse of a status man, by contrast, retains Indian status even if the marriage is dissolved. Entrenchment of the rights and freedoms now existing for the native people could be interpreted to mean entrenchment of special rights to native men and their denial to native women.
The National Action Committee recommends amendment to Section 24 by adding “providing that any such rights or freedoms apply equally to native men and to native women”.
I will turn this over to Ms. Carr.
Ms. B. Carr (Member of Executive, National Action Committee on the Status of Women): The Supreme Court of Canada. Decisions as to what rights and freedoms Canadian women will enjoy will continue to be made by the courts and ultimately by the Supreme Court of Canada. Yet, the Supreme Court of Canada decided: that women were not persons; the famous 1928 Persons’ case; that discrimination against Indian women in the Indian Act does not violate equality before the law; that Stella Bliss was not discriminated against because she was a women, but a pregnant person; and that Irene Murdock had no claim to a share in the ranch on which she had, for 20 years, done the haying, raking, swathing, mowing, driven the horses and tractors, and dehorned, vaccinated and branded the cattle, as well as kept house and raised four children, because she had done no more than what a normal farm wife would do.
A representative number of women on the bench is not just a demand for symbolism, that women and men are equal, nor for career opportunities, although women deserve the same chance at judicial appointments and promotions as men. Very practically, numbers count. The decision on Lavell and Bedard, which was mentioned earlier, was by a 5-4 majority in the Supreme Court of Canada. However, before it reached the Supreme Court, four out of five judges hearing these cases found for the women. Altogether 14 judges ruled on these cases, 8 in favour of the women’s argument, 5 against, and one did not decide on the equality aspects. Clearly, the appointment
of even one or two women to the Supreme Court of Canada could have made a difference in these crucial women’s rights cases.
At present three out of nine places on the Supreme Court of Canada are allocated to Quebec because it is accepted that judges without experience in civil law should not be deciding civil law appeals. Should the same argument not hold for women’s appeals, if not on grounds of socialization, gender identity and roles, then on the actual record of male judges in women’s rights cases?
The National Action Committee on the Status of Women recommends addition of a new section to guarantee the appointment of a representative number of women to the courts, including the Supreme Court of Canada.
The consistent use of the word “everyone” throughout this charter concerns us. “Every person” would be more specific, since “person” as used in the BNA Act has been clearly defined by the courts in the Person’s case. That was the judicial committee of the Privy Council.
The National Action Committee recommends replacement of the word “everyone” with “every person” throughout the charter.
To sum up, in order for the charter to provide unmistakably for the human right to equality for every person in Canada, including women, key changes are required in Section 1, Section 15(1) and (2). Amendments proposed in Sections 24 and 29(2) contribute to the same end. These changes are required to protect the fundamental rights and freedoms of all people in Canada, women and men, in their encounters with government and each other.
Now, you will notice that there is a list of the entire 11 recommendations that is appended to your copy of the brief.
The Joint Chairman (Mr. Joyal): Thank you.
Ms. L. McDonald: I would just like to make a few remarks about the process. The National Action Committee is extremely concerned about the lack of time available for discussion of such an important matter as the constitution. We had hoped to hold conferences across the country in order to facilitate discussion from the grass roots on what women’s concerns were. We applied for special funding for this beginning last May. We were not able to obtain it and we were not able to hold these conferences. We have held one, which was the basis for this brief, and another one will be held next week in Halifax but it takes a long time to get national organizations going.
We are a federation of 150 organisations, some of them large, some of them small. We meet as a national body only once a year. You have heard it before but it is very difficult for groups to consult with their constituencies with very little time.
I think that if one could hear from more women’s groups across the country, you would hear perhaps different things, you might have different emphasis on different parts, certainly other women’s groups should be heard and it is difficult with the lack of time.
We feel this especially strongly as a women’s group because women, while we are half the population, are less than 5 percent of the members of Parliament. If there is to be significant discussion amongst women, it has to be outside Parliament, in other words, our situation is different from other people in this respect.
Another of the particular difficulties is, from our point of view, that the problems are insidious ones. It looks on the surface that women are being given rights in this charter and it is only when you read between the lines and you find out what the Supreme Court decisions are, what the words actually mean, you find that women are not being given rights. In other words, it is a complicated matter to discuss and explain, it takes time to get this across, and we have felt the pressure of time. Therefore, we have supported the request of the Canadian Connection Group for an extension of the time period for the submission of briefs and generally an extension and a loosening up of the procedures for consultation.
The Joint Chairman (Mr. Joyal): Merci, Madame McDonald. I would like to recognize in our First Tour the Honourable Flora MacDonald. Madame MacDonald.
Miss MacDonald (Kingston and the Islands): Thank you, Mr. Chairman. You will note the frequent use of the word “M(a)cDonald” this afternoon.
The Joint Chairman (Mr. Joyal): Well, it is quite a well known name in Canada’s history, Miss MacDonald.
Miss MacDonald (Kingston and the Islands): I want to compliment the National Action Committee on their submission today and to thank Lynn McDonald for her comments just towards the end of her statement when she stressed once again the tremendous urgency there is for additional time so that other groups can be heard, and particularly in this very complicated area, that more women’s groups be heard. I would imagine, given the number of women’s groups who have asked to be heard, that we will find there is once again a kind of discrimination which takes place because I would venture to predict at this point that there will be far fewer women’s groups heard than those of the other sex, and I would hope that there would be some balance brought into the selection of the groups to be heard in the Committee hearings.
I think that the opening line of the National Action Committee’s brief sums up the tremendous anger that has been building up in Canadian women for a long time about the position they find themselves in, and once again they are confronted with a document which does not do justice to women, and the opening line of the National Action Committee’s brief says:
Women could be worse off if the proposed charter of rights and freedoms is entrenched in Canada’s constitution.
In other words, this document as it now stands could make the lot of women in Canada worse than it is at the present time. Now, that is quite an indictment coming from a body that represents 150 women’s groups, and I would ask Committee members to take into consideration just what a strong statement that is. It expresses the anger of women, because it goes back over the history of this country where for the first 60 years of history of this country, under the common law which we traditionally hold to, women were denied the right to vote. That is the penalty they had under the common law.
Under the courts women were denied the right to be known as persons, so that women were penalized whether through the common law or whether through the courts, and that is etched deeply into the soul of women right across the country.
Now, one of the reasons I would imagine that the submission starts off with the statement that women could be worse off if this proposed charter of rights and freedoms is entrenched in Canada’s constitution is that there was very little consultation with women’s organizations in the preparation of this charter of rights and freedoms, or in fact in the constitutional proposals. There was to have been a constitutional conference in September which I had anticipated would provide some input into the Government’s proposals and that was cancelled, and I would ask you, Ms. McDonald or either of your confreres whether or not at any time the National Action Committee was asked for any submissions or views as to how this very important document should be put together?
Ms. L. McDonald: Certainly as an organization none of us were asked by the government for our views on the constitution, not at all. We were invited by the Advisory Council on the Status of Women to prepare a paper which Jill Porter did work on, on social services as affecting women; but no, we were not asked.
Miss MacDonald (Kingston and the Islands): You were not asked and yet you represent some 150 women’s groups and your submission went to the Advisory Council on the Status of Women who have also condemned this document, so obviously if they had any input, it did not have much effect on the government.
I would like to look at some of the points which you have raised because, of course, the charter as you say, locks women into the concept of equality which in fact does not exist at all as equality. The first section, Section 1, the general limiting clause. Now, you have recommended that it be deleted; others who have been before the Committee, notably the Human Rights Commissioner, recommended that it be tightened up considerably so that the words “such reasonable limits as are generally accepted” be deleted from it, because of course, it is generally accepted that women are equal and that, as certainly many women realize, just is not so. I am wondering if you would in fact reconsider the recommendation you have made, looking to the fact that the International Covenant on Human Rights has a general statement regarding the rights of men
and women, and the recommendation Mr. Fairweather made also stated that at the outset of the charter there should be a statement which in fact does guarantee the rights of men and women in a general way, before we get into specifics, before we get down to the nuts and bolts, we in fact make that broad general statement in a positive manner and the suggestion that he made was that right at the very outset should be included: this charter guarantees the equal right of men and women to the enjoyments of the rights of men and women to the enjoyments of the rights and freedoms set out in it.
Now, I wonder if you took that positive approach, whether your group might consider the inclusion of that as something that would strengthen the charter?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: Mr. Chairman, we have recommended something similar to that in saying that there should be a positive statement of equality as a goal to be worked at, that this is a positive achievement for society. I think we would very much welcome a general statement at the beginning specifying equal rights between women and men. I do not know that we would be happy with just tightening up this other wording about th qualifications. The “generally accepted” qualification makes women very nervous . . .
An hon. Member: Hear, hear.
Ms. L. McDonald: I think for reasons similar to what Mr. Fairweather and other witnesses have raised regarding the treatment of Japanese Canadians. It was within my lifetime that married women were thrown out of the Public Service on marriage. The Stella Bliss case shows how unacceptable women in the labour force are if they are pregnant or if they have very young children. We cannot take as generally accepted all of the rights and freedoms that we would want to have. There are still people that would argue that women do not have a right to jobs on the same basis that men have that right. So we would certainly want that to be in there very strongly.
Miss MacDonald (Kingston and the Islands): Thank you. I would like to move on to Section 7 which you did not address but it is one that has come up at different times because once again there is an omission there that is in the International Covenant on Human Rights; it is in the preceding bill of rights and it has to do with property rights. Women have fought for equality in property rights on many occasions and in various levels of government and in any over-riding charter I would hope that that property right would be included. I wonder if perhaps this was something you had not addressed, or if you took a decision against it, or would you consider including property rights?
Ms. L. McDonald: We simply have not addressed it and I think this is one of the difficulties with the constraint of time. We are not in a position to speak for 150 organizations or even to canvass them for their views on this, so we cannot give you an answer to that.
Miss MacDonald (Kingston and the Islands): I will turn then to Section 15(1) and (2) and Sections 24 and 25 which are indeed linked to it because these are the more specific as opposed to the general statement of rights. Section 15(1) and 15(2) deals with nondiscrimination rights and as you say there is no real reference to the rights of women as such. That is something which would definitely have to be written into Section 15(1) as far as you are concerned, to make a specific recommendation to the rights of women?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: We would prefer a positive statement, where exactly it goes could be debated, But we would prefer a positive statement, not just the nondiscrimination, partly because of the problems in Section 15(2) in that affirmative action programs could be ruled to be illegal, whereas if there were a positive statement about equality as a good thing to be aimed at, affirmative action programs would be seen as a natural follow-up to that.
Miss MacDonald (Kingston and the Islands): Yes. I realize that; that is Section 15(2) which we are talking about as far as disadvantaged person and putting in the positive statement there, but I would think in Section 15(1) it would be necessary to spell out very clearly that every man and woman has the right to equality before the law, that it has to be put in in much clearer terms in Section 15(1) than it is now.
Ms. L. McDonald: Yes. Our complaint with Section 15(1) is not that the sex discrimination is not so clear but that the equality before the law is an inadequate wording, because it has been interpreted only to mean equality in the application of the law and has not been interpreted to mean that the laws themselves must not discriminate against women.
Miss MacDonald (Kingston and the Islands): Indeed this is the very wording that had been used in the Lavell case to deny the rights of women.
Ms. L. McDonald: Yes.
Miss MacDonald (Kingston and the Islands): You made the suggestion of adding certain other categories to that, in that section. I think the ones you suggested are marital status, sexual orientation and political beliefs. Now, I would ask you if in that too you would consider, because I think that it should certainly be known that women support this kind of thing, that you include as well the mentally and physically handicapped.
Ms. L. McDonald: We have never canvassed on this point, but I expect that that would find very broad support among women’s organizations.
Miss MacDonald (Kingston and the Islands): Section 15(2), that is the one which I think could kill any affirmative action program that is now in effect in Canada if the courts so decided of if they moved in much the same way they have in
the past as far as women’s rights are concerned, because it talks about this, it says:
(2) This section does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged persons or groups.
But by and large women are not seen as a disadvantaged group and yet any affirmative action program that is in effect for women could be killed by an interpretation of that section.
Ms. L. McDonald: This is a very dangerous one. Incidentally, I would like to make the point that I am not aware of any real affirmative action programs in the country at the present time in the sense of a program intended to enable women to catch up. The ones which exist simply are to prevent further discrimination, to keep women from falling below where they ought to be. For example, if women constitute 40 per cent of the people who have a certain skill. they should get 40 per cent of the jobs in that area. it is not suggested they ought to 60 per cent to compensate for the fact they only had 20 per cent before. There are not any programs which would actually disadvantage a man to my knowledge in Canada, but should that happen, should there be genuine catch-up programs, there is a very real danger that they would be ruled to be illegal by the Supreme Court. If we sound to be in contempt of court, it is for very good reasons.
Miss MacDonald (Kingston and the Islands): Hear, hear.
Ms. L. McDonald: The decisions of the Supreme Court and other courts, the courts generally, have been very bad.
When women are the victims of discrimination, judges have been very bad on this. They have been much better on native peoples, much better on ethnic minorities than they have been on women’s issues. That is why we think we just have to spell out these things. We just cannot leave that one to chance.
Miss MacDonald (Kingston and the Islands): I have a final question, do I, Mr. Chairman?
The Joint Chairman (Mr. Joyal): Yes, your last question.
Miss MacDonald (Kingston and the Islands): I want to touch briefly on the whole question of the lack of rights for Indian women in this country and I hope that the Indian Rights for Indian Women’s groups will be able to appear before this Committee. But the charter as it is now written would, in fact, entrench, in my opinion, the abhorrent clause, Section 12(1)(b) of the Indian Act, into the constitution of Canada and make it even more difficult for Indian women to gain their rights. If you follow through from Section 15 to Section 24 and Section 25, you will find that it would lock in the wording of the very clause that denied Jeanette Lavell the right to be regarded as an Indian, even though she is a full blood Indian woman. If something is not done about this, if
some change is not made to take that particular situation into consideration, you will find that the Sandra Lovelaces of this world who have to go to the United Nations now to seek redress against discrimination are going to have to continue to go to the United Nations rather than to the Government of Canada or the courts of Canada.
I wonder if you would comment on how you see the Sections 15, 24 and 25 locking in the discrimination that now exists against Indian women.
The Joint Chairman (Mr. Joyal): Ms. Carr.
Ms. Carr: Thank you. The situation here is really desperate for Indian women. Unless we can spell out the understanding of the present situation where there is a built in discrimination and there has been, as Miss MacDonald has just explained to us, the rather invidious situation where Indian women in Canada have to go abroad to look for redress in this, to my mind it is like pouring concrete over a very unjust situation. It will be set for all time to come if the wording here is not changed to accommodate it. I am not really prepared to explain any definite wording and how to handle this. We are not constitutional experts. We think we see some of the soft spots. We think we see what needs to be done. We return it to you people with your expertise to get our ideas into this Charter of Rights.
The Joint Chairman (Mr. Joyal): Miss Jewett, please.
Miss Jewett: Thank you, Mr. Chairman.
I want to congratulate the National Action Committee on the Status of Women as well, on in a very short time preparing such an excellent brief. I have shared their concern for a number of years and, indeed, as Miss MacDonald will know, spoke in the House of Commons on October 23 when we were then debating the proposed constitutional resolution.
I wanted to emphasize then and emphasize again now how important it is that the equality of women, women’s human right to equality is a positive objective that must in the document be stated as a positive objective.
I wanted also to emphasize, and I think you have but perhaps you might want to comment a little further. on the very great importance of changing the wording that is now “before the law,” the very great importance of changing that to “in the law” or “in law”, because of the fact that the “before the law” clause has been, of course, a part of our common law and it is also a part of the statutory bill of rights and as has been said, has been interpreted in a way not to provide for equality in the law itself.
I am assuming that you would want in Section 15(1) a definite change in the wording that now exists and remove “before the law”.
What is so very important, it is not the minor fact that we change a word, it is of vital importance to give a clear message to the courts and to the legislatures that their interpretation must be changed. If you use the same words naturally a court will continue to interpret those words the way the court has
hitherto interpreted them. Nor is it any good to say, as I think the Minister responsible for the status of women says, that by entrenching the bill you will somehow be giving a message to the courts that they should interpret those words differently. I do not myself believe that is a valid argument to make. In fact I think it is a very flimsy argument to make because the courts in many instances have interpreted the Diefenbaker bill of rights, the Canadian Bill of Rights as if it were entrenched. And the famous Drybones decision has never been overturned on that score and therefore, simply now to say that the words will be treated differently, is to me a very weak argument.
In my speech in the House, and I think I was the only one that did speak specifically on the need for change as far as women are concerned, I did make an appeal to all my fellow members of the House and particularly to the 14 women in the House, that we should do as we had done once before this year, get together as we did on the question, Flora MacDonald will recall, of equality for Indian women, I hope that all the women will once again get together to ensure that the changes that you have suggested and other changes might be made.
I would like to ask a few particular questions. Again, this may be a problem that you have had so little time that you would not have been able to have canvassed all your members about it. I wondered if you had given thought though to removing the word, “discrimination” in Section 15(1), in fact it is not in the French version at all, and use the word, “distinction”.
I will just give the exact wording. It says here:
without discrimination because of race, national or ethnic origin,
I wondered if you had given any consideration to this ticklish matter of what is a reasonable distinction and what rights might be abridged or limited on the basis of a reasonable distinction.
Some people would argue for example that in the case of age you do not have complete rights for everybody of every age, children and older people alike, and in what areas there should never be allowed a “reasonable distinction” or “equality on the basis of a reasonable distinction”.
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: Two points to address here, one on the entrenchment issue itself. We want to stress that the Lavell and Bedard cases were lost to women not because of the lack of entrenchment of a Canadian bill of rights but because the judges did not see the issue as a matter of equality because they interpreted “equality before the law” in an extremely narrow fashion. Miss Jewett is quite right in pointing out that the judges did not come up with this narrow interpretation when it was a matter of Drybones where the victim of discrimination was a native male, but they were unable to see equality when it was a case of women being the victims. So it
was not the lack of entrenchment that has done women in on these very important women’s rights cases.
The matter of “reasonable distinction” is a very tricky one, and one that we would be very worried about. I think the important point is that some characteristics are immutable, sex is and race is, and we do go through different ages. Questions of income and social class, these are changeable things, people’s occupations, their abilities and so forth. Of course, there are reasonable distinctions that have to be made. The Unemployment insurance Act has to distinguish between people who are unemployed and people who are employed. That is a reasonable distinction. But we have to be very careful when it is a matter of an immutable characteristic such as sex and race. “Reasonable distinction”, there have been court cases in which this has been argued or a “valid objective” and of course this has been traditionally very detrimental to women because one could always think of some good objective. Protective legislation, so-called protective legislation has been of this sort. It has made a reasonable distinction, it has been for the benefit of women and it has not been in practice. So we would be leery of anything along those lines.
Miss Jewett: But you would generally agree that probably one should have perhaps two tiers, those where no distinction should be made, that there will never be allowed a reasonable distinction; and certainly we could agree that characteristics, as you say, of sort of immutable character would be included such as race and sex, and that there would then be another tier where reasonable distinctions could be made, you would agree with that.
Of course one of the reasons why this is so badly drafted and why women’s groups, and we will be hearing later from the Canadian Advisory Council on the Status of Women, have been protesting the present wording is because unfortunately most of the academic lawyers and government lawyers who have been looking at questions relating to equality over the past ten years have not been looking at the problem of women’s equality and, indeed, have not been women lawyers and academics. I think your brief shows the benefit to be derived by the fact that young women nowadays are becoming prominent as constitutional lawyers and prominent in the legal profession as well as in the law schools.
In this connection, I wondered if you had given any thought to, or the lawyers that are advising you, had given any thought to the effect of Section 42 on women. Now this is the referendum section and most of us, in my party anyway, feel that the referendum section should not apply to the charter and, therefore, would not apply to Section 15. One of the main purposes of entrenching rights and particularly adequately entrenching women’s human right to equality, and indeed the rights of ethnic and other minorities and so on, is so they cannot be taken away by a majority vote. Have you given any thought to the fact that the referendum, as it now stands, would apply to all parts of the constitution act of 1980, including the charter of rights?
Ms. L. McDonald: No, we have not addressed that question specifically. I would agree with you on the reasons for your argument, that we want something where rights cannot be brought into question. But women, of course, will be divided as men are divided on many other issues that might be brought to a referendum such as rights of collectivity.
Miss Jewett: Yes.
Ms. L. McDonald: So we would not want to close that off. Again, this is a complex matter on which we have not canvassed our 150 groups.
Miss Jewett: Right.
Ms. L. McDonald: We cannot be more precise. Sorry.
Miss Jewett: Perhaps it is one you will give a little more thought to in what time is available?
If I may go back to Section 1, I agree with you that it would be far better to have a simple statement of process, the one that has been often suggested is simply:
1. The Canadian Charter of Rights and Freedoms guarantees
To every individual:
the rights and freedoms set out in it
I wonder what you would think with simply continuing that statement with the phrase, “and the equal rights of women and men to the enjoyment of these rights and freedoms”. This was mentioned a moment ago and was also mentioned by the Chairman of the Human Rights Commission. But it seems to me that it might be the simplest and best—simply to add that clause “and the equal rights of women and men to the enjoyment of these rights and freedoms,” so do you feel that would be sufficient to get across the positive thrust that you are anxious to have this document portray?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: I think it would be sufficient to get across the positive thrust; but we would not like to see the fine print left out on these other things. But that would be quite an acceptable wording.
Miss Jewett: No, no. There would still have to be the changes in Section 15.
Ms. L. McDonald: Yes.
Miss Jewett: The question of the Supreme Court is not addressed in this particular constitution act. Did you really hope that we might actually address it at this stage, the composition of the Supreme Court? If so, have you thought specifically of the number of judges that would be appropriate and who would be women? You say a representative number. I wonder if a representative number would be 50 per cent. I wonder if we were going to be really brave and make that proposal?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: That would be excellent, if you would be really brave and make that proposal.
We did hedge and say, “representative”. It would take some time for women to be appointed and to work up to that 50 per cent. We addressed the question because we think it is extremely important that you consider who is sitting on the Supreme Court and in other courts making the decisions. You cannot just talk about the form and not the substance. Who are going to be making these decisions?
We have reason to believe that the quality of debate changes, and changes for the better, as far as women are concerned when more women are present taking part in the debate.
For example, the Nordic countries, which have 50 per cent women on the city councils, and in some Parliaments 25 per cent, now find that it is much easier to raise women’s issues and have them taken seriously. It changes the climate of understanding and gives a certain legitimacy to women’s concerns just by having women there; they do not have to be feminists; they just have to be there. The men’s understanding improves.
Mr. Mackasey: All women are feminists.
The Joint Chairman (Mr. Joyal): Miss Jewett.
Miss Jewett: If I may just ask about Section 29(2)—this is the moratorium section, which excludes Section 15 of the charter from immediate application.
Assuming that Section 15 is appropriately amended, particularly removing the “before the law” clause and changing it to “in law”, and also strengthening the affirmative action section, and assuming this has been done, would you elaborate more on your argument that a three-year moratorium on putting this into effect is unnecessary?
I, myself, am curious to know why a moratorium would be necessary, and I wondered whether you had also thought this out and had developed reasons for abolishing that moratorium?
The Joint Chairman (Mr. Joyal): Ms. Carr.
Ms. Carr: We do not believe it is necessary. Therefore, we do not think it should be there. I might just draw a parallel with some of the other rights that are being considered and dealt with in the charter. For instance, language rights, mobility rights, et cetera, even rights of the aged: is there any reason why this section should have a moratorium on it to enable this legislation to be brought up to date? I believe it can be handled.
The advisory councils have lists of these. Perhaps this information was not available to the drafters; but I really think we can get along without it. I think there are dangers in having it there, because other things could happen during the three year period which would not be palatable.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: Thank you, Mr. Chairman. I realize, Mr. Chairman, we are now under considerable constraints of time, and I will try to confine my remarks and comments and just elicit a few responses from our witnesses. I think their brief has been very helpful, and I hope they will appreciate the
unusual number of women members who are at least temporarily enhancing this Committee and see it as some signal of the concern we all feel and of our support for many of the objectives which you have stated in your brief.
If I could just go through your comments, with respect to your comments on Section 1, I am inclined to agree with you absolutely. You may be gratified to know that we had an excellent brief the other night from the Canadian Jewish Congress, who, in fact, gave us exactly the same suggestion as you did, which was to eliminate Section 1.
I have no doubt that if it is retained in any form it will be substantially strengthened, because I agree with you it is most inadequate the way it is at the moment.
In your B recommendation, again this is a suggestion which has been made by more than one group that has been before us, including the Canadian Jewish Congress the other night. I think that is a very reasonable suggestion and is perhaps one which the drafters overlooked, because I think there was no intention, really, of making the section so that every human right which has been enumerated could be abolished or abrogated even in an emergency.
I am confident that section will also be considerably strengthened.
In your comments on equality before the law, I agree with you absolutely. This section needs to be changed. We cannot accept the wording there because of the judicial decisions which have been made. It has been my understanding that some new wording has been proposed. I am hoping—and I am certainly confident—that this section can be changed to ensure that it would be perfectly obvious that the effects of the Lavell and Bedard decisions are no longer good in law and that will be recognized.
As a matter of fact, I rather prefer your positive approach to equality before the law of both men and women, and I would prefer that neater, more positive and direct approach myself.
We will have to see what changes are made eventually in that.
I am not quite sure what is meant by your recommendation F that on the basis of a specified category as prescribed whether all members of that category are affected or only some.
What was the purpose of that?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: This came from the Stella Bliss decision, where we had a Supreme Court decision to the effect that not all pregnant women were denied benefits under the Unemployment Insurance Act, and therefore there was no discrimination against women. It was a ludicrous decision, the kind of thing— and the analogy could be drawn with the Drybones case: not all Indians were discriminated against; not all Indians are intoxicated off the reserve.
But in Stella Bliss, a woman was denied equality before the law on the grounds that not all women in that category were discriminated against. We just think it is necessary to fill in the footnotes to give directions to the judges to interpret actual cases that come before them.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: With respect to Section 15(1) and Section 15(2), I have some reticence about going along with the recommendation you have made, particularly under Section 2, that we need to include the words “including women in the affirmative action section.” It says:
the amelioration of conditions of disadvantaged persons or groups.
If, by any chance we do get the amendments and the kind of charter that you otherwise ask for that ensures the equality of women before the law, I really do not see the necessity of inserting that kind of phrase in there; whether you would say “including men” or “including women”; they are persons, and persons before the law. So I do not think that reinforcement is necessary in there; there are affirmative action programmes, and it is my view that, of course, there are going to be disadvantaged women, and they will have to be given special consideration under affirmative action programmes. But there will also be disadvantaged men from time to time for other reasons.
So, I feel that if we get the other amendments to this charter, that in itself should be more than sufficient to protect both sexes.
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: We do not agree with that. Women, today, on average earn 60 per cent of what men do for fulltime work. It is very difficult to imagine the tables being turned so much that men average only about 60 per cent of what women earn. It cannot be within our imagination that the tables would be so badly turned that men, as a group, would be disadvantaged so as to require affirmative action programmes.
What we worry about is the fact that women are about half the population of the country. Would the courts decide, women being half the population of the country. that they constituted a group in that sense, a disadvantaged group? I can hear a judge saying, “Women are not a disadvantaged group. My wife has never ever been disadvantaged.”
If you read the cases, you will see remarks of this sort. There has been a terrific inability among judges to understand inequality against women, and I do not think we can leave this one to chance.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: I understand your concern, but I still feel if the other sections were strengthened and women had recourse to the law under the equality sections, eventually those inequities which are now in existence would gradually be eliminated.
The Joint Chairman (Mr. Joyal): Ms. Carr.
Ms. Carr: I wish I could share your optimism that all the other things we are asking for would be granted. I hope that would be so. But we want to be sure that this is quite clear in this particular case, in case the wording is not quite to our liking somewhere else.
The Joint Chairman (Mr. Joyal): Senator Neiman.
Senator Neiman: I understand that, but we hope we will get the other amendments that we want, Ms. Carr.
The other matter I would like to refer to is your comments and recommendations with respect to Section 24, particularly, again, to native people. There, again, I believe—I am not satisfied that is a rather general statement in there; but I think that the concerns of the native women with respect to the present Section 12(1)(b) of the Indian Act, will be met even by the provisions of this charter. I know that some people feel that they will not, but if you read that, together with Section 25, it is my opinion that that section overrides every other statute, including the Indian Act which is a federal statute; and that the only problem you may have with it is that it does not come into effect for three years, if Section 29(2) to which you also object, remains as it is.
But, I think you are obviously aware that there has been a moratorium placed on the application of 12(1)(b) at the moment—and I hear comments that it is not working; I know it is not working; but it is not simply because of the women, but because of the Indian Bands. I am not excusing that, but simply saying that it is not working; that it is going to take some time in the concurrence in both men’s and women’s groups to have that section changed.
But in my view, there is no doubt that three years from the proclamation of the section of this charter they will have the full protection, if not sooner, of the law and of this charter.
So far as Section 29(2) is concerned, I think members of the legal profession from Ontario who are present will certainly remember the chaos which was created in our province a few years ago when the Family Law Reform Act was implemented almost immediately after its proclamation. The legal profession, the officers who had to administer or observe the law, men and women who were directly affected by that law, all had many, many problems, because it just was proclaimed one day and suddenly put into effect the next day. It was almost impossible to deal with it, because that law cut across so many other laws.
I think there needs to be a transitional period. I am not arguing for three years. I think it is going to take three years to amend all of the laws which might be affected by the provision of this charter.
But I have been looking at it there, and it seems to me that this section could be amended in some way to suggest that if any statutes are amended which will be affected by the provision of this charter, can be amended and proclaimed in the meantime, they could come into effect immediately, but in no case later than three years down the way.
I quite understand your concern, and the concern of the many women that you are representing, that three years is a long way down the line as it appears to be. But I think, in very practical terms, a transition period of some kind is necessary, and probably the periods could be allowed to vary depending upon the laws involved. Would you feel that kind of amendment would be acceptable?
The Joint Chairman (Mr. Joyal): Ms. McDonald.
Ms. L. McDonald: Well, there are several points here. On Sections 24 and 25, we do not feel that Section 25 is an adequate adjunct to Section 15. Section 25 says that laws which are contrary will be inoperative. Contrary to the charter, but what provision of the charter? You see, the Indian Act is contrary to Section 15(1) of the charter, but it is not contrary to Section 24 of the charter. So there is an ambiguity there, it would have to be interpreted by the courts and the courts have been terribly bad on these issues. We would have to trust the Supreme Court of Canada really to understand and to come out, given that there is an ambiguity and to treat the equality as being the more important consideration there, and we do not have confidence that that would be the decision that would be made. We do not think it should be left to chance, we do not think there should have to be litigation for years in order to find out what would happen.
On the moratorium, let me emphasize that on the question of the native women’s rights, the discrimination has been known about for years and it has been complained about for years, it was a recommendation of the Royal Commission on the Status of Women in Canada, that report was tabled in Parliament almost ten years ago. In a couple of weeks it will be ten years ago.
This has been known about for a long time. that there are wordings—it would not take a long time and it has been a lack of political will, it has not been the necessity of working out detailed legislation or administrative procedures. We certainly have been lobbying on issues of housing, for example, which would be relevant to this for a long time. We just do not think there is any excuse for this ten year moratorium—pardon me, a three year moratorium. A Freudian slip there.
If I could just raise a point that came out. earlier in discussion that I am wondering has left a misimpression about redress of native women’s rights. In the case of Sandra Lovelace, who has gone to the United Nations, that does not give her any redress of rights. What will happen if Sandra Lovelace wins her case is that Canada will be condemned for having discriminated against her but that does not give her back her rights. So it requires repeal of Section 12(1)(b) of the Indian Act or a very clear statement here in order for native women to get redress. There is no other way around it.
Senator Neiman: I quite agree with that, Ms. McDonald, and it has been a long time overdue.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): We want to thank the National Action Committee on the Status of Women for being present today and for your brief. We appreciate you coming and as a matter of fact we are honoured. However, your time is up and I was just wondering why we do not have a Section in here for babies and children. All you girls are going to be working and we are not going to have anybody to look after them.
Mr. McGrath: You would have been better off, Mr. Chair: man, if you had just used your gavel.
Miss Campbell: It is a good thing the charter is not passed.
November 24, 1980, J.P. Humphrey (President, Canadian Human Rights Foundation), N.A. Kinsella (Chairman, New Brunswick Human Rights Commission), & Francis Young (Legal Advisor, New Brunswick Human Rights Commission), 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. 11, p. 30 (click HERE)
Mr. J.P. Humphrey (President, Canadian Human Rights Foundation): […] Summing up, Mr. Chairman, my submission is that, before entrenching this charter of rights in the constitution, its provisions should be carefully examined to ensure that they reflect our obligation as a country under international law.
Mr. J.P. Humphrey (President, Canadian Human Rights Foundation): There are certain rights, Mr. Chairman, which should be sacred even in times of emergency. There is no reason why in time of emergency, even an emergency which threatens the life of a nation that people should be, for example, subject to torture. There is no reason why, even in times of emergency,
there should be discrimination on grounds of race, sex, language or religion.
What I cannot understand, Mr. Chairman, is why the drafters of this bill have not used the precedent to which Canada has agreed and which was laid down after years of labour in the United Nations. Now, Article 4 of the Covenant on Civil and Political Rights deals precisely with this question of national emergency. It is so important that I am going to read just a few phrases from it. Mr. Kinsella reminds me that this is reproduced in the appendix to the brief of the New Brunswick Human Rights Commission. I would suggest that before reporting on this bill back to the House that this Committee might well study this Article very carefully. It says:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.
And now I come, Mr. Chairman, to the point which is
and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
You will find substantially the same language in the European convention. But the United Nations Covenant goes on to say that no derogation shall ever be made, even in time of emergency, from the rights enunciated in certain articles, for example.
And I will not take up the time to read them all out, but for example, the right not to be subject to torture: why should not that right be respected even in time of public emergency; the right to life; the right not to be imprisoned for contractual obligation and a number of such rights that should be protected even in time of national emergency.
My plea, Mr. Chairman, is that before finally adopting this charter reference should be made to our international obligations with a view lo ascertaining, to making sure that the new Canadian Charter of Rights and Freedoms respects our international obligations.
Thank you, Mr. Chairman.
Mr. Kinsella: We make comments on Section 15 with reference to equality before the law. That is terribly important for us, Mr. Chairman. It is important because that wording, as others have mentioned before this Committee, has to be such that people, like Sandra Lovelace, would not have to seek remedy outside of her own country, but would be able to find justice and equality within Canadian law. She has, as all Canadians have, the right to a domestic remedy against the worst form of discrimination, namely legislative discrimination.
Secondly, we would like also lo see Section 24 amended to protect not only native men but also native women.
With your permissions, Mr. Chairman, I will invite my colleague, Mr. Francis Young to conclude our oral presentation by outlining our position on affirmative action.
The Joint Chairman (Mr. Joyal): Mr. Young.
Mr. Francis Young (Legal Advisor, New Brunswick Human Rights Commission): Mr. Chairman, I take great pleasure in having this opportunity to present the Committee with our views on the proposed Charter of Rights in the constitution.
First, I would like to deal with paragraph 15(2). The New Brunswick Human Rights Commission supports this paragraph in principle but proposes that it be amended in order to avoid a possible problem.
It is recognized today that affirmative action programs are essential to the reintegration into Canadian society of disadvantaged minorities who, for many years, have suffered the cumulative effects of discrimination. Programs like this would be precluded under paragraph 15(1) so it is essential that it be maintained in paragraph 15(2).
However, the Commission feels that the scope of paragraph 15(2) is too wide since it authorizes not only affirmative activation programs provided for by law but also those which are not.
Therefore, our Commission recommends that only programs undertaken in accordance with the law fall under paragraph 15(2). This would avoid …
This would avoid removing the affirmative action programs from the scope of paragraph 15(2) which is essentially a continuation of paragraph 15(1) or the exaggerated affirmative action programs like those which include “quota” for example. On the other hand, programs which have been entrenched in the law would not lead to abuse as frequently.
I would now like to turn to the question of violation of the charter. The proposed text is grievously lacking. In some cases, citizens cannot take advantage of guaranteed rights while under other provisions, they cannot exercise their rights efficiently.
Section 25 should state that any law, regulation or order in council that is inconsistent with the provisions of this charter is, to the extent of such inconsistency, inoperative and of no force or effect. This would mean that what could not be done directly by a law, could not be done indirectly through a regulation.
It is also essential that Section 25 outlaw activities which violate the provisions of the charter as most of these sections will probably be infringed upon more often by government activities than by anti-constitutional legislation.
So, in conclusion, Mr. Chairman, we suggest that the drafters and the translators compare the French and English versions meticulously in order to ensure that the two texts correspond.
Particularly, it should be pointed out that in Section 1, “reasonable limits as originally accepted” has been translated by “réserves normalement acceptées” So, the word “reasonable” has not been translated in French. This omission is critical because Section 1 is one of the most important in the charter and “reasonable” is one of the key words.
N.A. Kinsella, p. 35
Mr. Kinsella: Yes. I think that under Section 15, for example, that the non-discrimination grounds should not be written the way they are but, rather, the non-discrimination grounds should be indicated the way we have suggested, namely every- one is equal before the law without regard to discrimination on such grounds as race, national or ethnic origin, etc. or other
status. In other words, rather than attempt to give complete enumeration and to respond to whoever may be able to get before you and argue that a given ground be added, by following the terminology which I just suggested, which is the terminology of the covenants to which we are already committed ourselves, that many other categories, if you like, or classes of non-discrimination rights by virtue of things like physical disability, etc. can be captured.
Svend Robinson, N.A. Kinsella, Ron Irwin, p. 38
Mr. Robinson: […] You go on in your brief to question the use of equality before the law. I assume that that would somewhat reduce the strength of your earlier recommendation on page 7 that the wording includes “equality before the law”; you would in fact want a stronger formulation, would you?
Mr. Kinsella: We have recognized that this would not be a drafting session and we did not have the time to come up with the exact wording, but the principle that we would urge upon the Committee would be that whatever phraseology is developed to handle the question of persons being equal before the law would be written in such a way that people like Sandra Lovelace would indeed have equality before the law and that it would be understood as resting on the principle of egalitarianism, resting on the principle of egalitarianism, resting on the principles, if you like, of the minority opinion in Bedard and Lavell, resting on the opinion that we have from the experience in the United Nations and also Brown vs the Board of Education in the United States.
Hopefully, the expertise exists here to draft it, but that is the principle that we would want it to rest upon.
Mr. Robinson: I appreciate that answer, and as I understand it what you are saying is that in your proposed wording that in fact there are certain principles that you are more concerned with entrenching and perhaps the wording you have suggested would be altered to reflect those principles.
Mr. Irwin: Mr. Kinsella, I would like to echo the remarks of Mr. Robinson. It is indeed an honour and a pleasure to have you and Professor Humphrey and the rest of your delegation here.
I am particularly interested in the case of Sandra Lovelace. It is my understanding that it has been approximately two and one-half years since she tried to establish her rights, and at page 10 of your brief you say, and I quote:
Sandra Lovelace like all native women who marry non- status Indians lose their Indian rights because of Section 12(1)(b) of the Indian Act.
The reverse would not be true, is that correct, as far as an Indian male?
Mr. Kinsella: That is right.
Mr. Irwin: There has been quite a bit of discussion about this and it is still not clear in my mind how far Section 15(1) goes. I would like to go over it. 15(1), and I quote, says:
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.
Would you agree that the sex would cover Indians? Sex is not only referable to non-Indians.
Mr. Kinsella: Sex has been defined by our Canadian courts to refer to gender in the antidiscrimination statute.
Mr. Irwin: We are in agreement that would include Indian women.
Mr. Kinsella: Yes.
Mr. Irwin: Section 25 states:
25. Any law that is inconsistent with the provisions of this Charter is, to the extent of such inconsistency, inoperative and of no force or effect.
That is read in context with Section 29(2) which allows a three-year breathing period.
As I read this, if there are no amendments to the Indian Act when three years have elapsed Sandra Lovelace would have those rights which she does want.
December 5, 1980, Ken Norman (Chief Commissioner, Saskatchewan Human Rights Commission), 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. 20, p. 7 (click HERE)
Mr. Ken Norman (Chief Commissioner, Saskatchewan Human Rights Commission): […] Section 15 of the proposed Charter proscribes discrimination on the ground of sex. An insight into how our Supreme Court might see fit to confine the interpretation of this word “sex” may be found in the unanimous and brief decision handed down by our court in Stella Bliss versus the Attorney General of Canada. This decision was signed on October 31, 1978. As you have heard at some length about the Bliss decision, I will content myself at the moment with reminding you that, although the court acknowledged that the Unemployment Insurance Act perhaps invidiously discriminated against the plaintiff on the ground of her status as a pregnant worker, it did not discriminate against her because of her sex.
Exactly one month after the Bliss decision was published, the Saskatchewan Human Rights Commission heard a complaint by Lucille Leier against the CIP Paper Products Company. The case involved an allegation by Ms. Leier that she was discriminated against by her employer on the ground of sex by virtue of being denied disability benefits under a group illness and disability plan underwritten by the Metropolitan Life Insurance Company, which plan specifically excluded coverage in the case of pregnancy or pregnancy related disabilities, childbirth or complications.
My colleague Louise Simard and I put our signatures to a decision which cleared the way for a reversal of the Bliss case, in our province. Permit me to read the last paragraph of that decision in Leier.
Because of the Bliss judgment, we find ourselves with very little choice. But for this Supreme Court pronouncement, we would have authored an opinion saying that the disability plan in question was in violation of Section 3 of The Fair Employment Practices Act.
Which section simply proscribes discrimination in the workplace on the ground of sex:
We would have preferred the unanimous view of the American Federal Circuit Courts of Appeal,
Seven of them:
as endorsed by the dissenting justices in the American Supreme Court in Gilbert. To establish a dichotomy between “pregnant women and non-pregnant persons,” is surely, to beg the question. As Mr. Justice Stevens
A dissenter in Gilbert said,
“The classification is between persons who face a risk of pregnancy and those who do not,” If this be the proper dichotomy, then the question put to us must be answered in the affirmative. For, to exclude pregnancy related disabilities from coverage under an employee disability protection plan is, surely, to engage in an act of sex discrimination. This is because men do not face a risk of pregnancy. However, due to Bliss, the only deferential option open to us is to accept the employer’s argument. The Ontario government,
and, more recently, the Congress of the United States, have seen that the question at issue must be answered in the affirmative. Our hope is that the Legislature of the Province of Saskatchewan will demonstrate, before long, that it has similar vision.
As soon as the Leier decision was published, our Commission drafted amending words, with a view to legislatively
broadening the definition of sex. I am pleased to tell you that within five months those words had received the unanimous support of the House in Regina, and the Saskatchewan Human Rights Code now explicitly defines sex so as to embrace discrimination on the basis of pregnancy or pregnancy related illness.
If you will, I ask you to imagine how this scene might have played if the Supreme Court had had Section 15 before it when it came to consider Bliss. There is no evidence that I can find to found a conclusion that they would have adopted any less narrow a definition of sex. But then, where would my Commission be in responding to the challenge of the Leier case a month later? I rather doubt that we would have enjoyed much success in attempting to overthrow what is now a constitutional interpretive ukase from the Supreme Court. However, if our constitution, if our Charter of Rights provided an indication to that Court that it should respect the original jurisdiction of statutory human rights agencies to consider antidiscrimination matters first, there would at least be a clear opportunity to present to the court a complete record, a more full argument, before it took it upon itself to rule on the matter. Allow me for a moment or two to take you into the specific reasoning in Bliss to elaborate upon my point.
In a very brief judgement, a unanimous Supreme Court had to wrestle with the meaning of the phrase “equality before the law” in the Canadian Bill of Rights and what, to my mind, is an apparently discriminatory outcome of our unemployment insurance legislation as it affects the pregnant worker. Only five Canadian cases are cited in the judgment and no more and then sex discrimination is clearly said not to include pregnancy.
In our decision in Leier a month later we pointed out that no fewer than 18 United States Federal District Courts and seven Federal Circuit Courts of Appeal had all considered this question and come to the opposite conclusion, and considered this very question under an American statute, not the constitution, what sex discrimination was to be said to include, We further noted that some seven full months before the publication of the decision in Bliss, the House of Representatives published a report entitled Prohibition of Sex Discrimination Based on Pregnancy. At the time of that report there was a bill before the House and the Senate. At the time of the publication of that report it was public knowledge and we said so in the Leier decision, that some 100 members of the House and some 30 Senators had already publicly endorsed this bill, the bill was sure to pass. And the bill did pass. It made it clear that sex discrimination was to include discrimination on the ground of pregnancy and pregnancy related illnesses or disabilities.
The bill cleared through Congress well before Bliss was handed down, yet the Supreme Court apparently knew nothing
of this, and as at final irony, the very day that Bliss was published, October 31, 1978, that same day President Carter sat down to sign this bill stating the opposite.
Had the Bliss case, in my hypothetical constitutional scenario, been first considered by a statutory human rights agency, I am confident that the American jurisprudence and legislative history would not have gone unnoticed and perhaps, just perhaps, the Supreme Court may have been saved from error. That is my thesis this morning.
Ray Hnatyshyn & Ken Norman, p. 17
Mr. Hnatyshyn: One short snapper, Mr. Chairman.
At the end of your presentation you endorsed the position taken by Mr. Fairweather in respect of Section 15(2) of the proposed Charter.
Do you subscribe to the position that has been put forward by Mr. Gordon Fairweather entirely, or is there any difference between your position on the antidiscrimination provisions to that presented by Mr. Fairweather?
Mr. Norman: Yes, there is a difference, and it was brought forward to this Committee in what I think was—and some members commented at the time—a remarkable brief presented to you on November 20 by the legal counsel, Mary Eberts, of the Advisory Council on the Status of Women. Although it did not emerge from the brief which was presented to you, it did emerge from subsequent questioning that her proposal of what she called the two-tiered method under Section 15(1) of having suspect categories and having a second level of discrimination which is undefined, but definable by the courts from time to time, so that the constitution can live and grow on the basis of unreasonable distinctions, what she said in response to members of this Committee—and I have forgotten to whom—was that she had attempted to take the spirit of what Mr. Fairweather had said and give it a little better, more juridical look in draftsmanship, because what the Canadian Human Rights Commission proposed to you was really quite an all or nothing proposition under Section 15(1) to the effect of either say nothing beyond the quality before the law and equal protection and then stop, because this is a constitution and it is for a very long time and you ought not to try to build in everything that strikes us as the best social policy today only to have it appear quite inadequate in a decade. Either do that, or, he said, put the list down and go as far as has been gone by the legislatures across this country.
What Mary Eberts said in her brief-and it strikes both Louise and I as a very good piece of legal work—was that that “either/or” proposition is not going to work and that the spirit of what Mr. Fairweather was seeking—and others have sought—to achieve is accomplished by having a double tier: one tier, those things which are a matter of great social movement brought about over long decades and which we would never want to go back on and with respect to which we have made promises in the international area, such as the United Nations Covenant on Civil and Political Rights and the signing of the Optional Protocol; nonderogable anti discrimination provisions having to do with race and religion, and, in her brief, she argued that sex ought to be added to that list as well—national or ethnic origin and colour. And then of that category, to say-and I do endorse counsel’s draft in this regard—discrimination in that category is suspect and ought not to stand unless there is a compelling interest for it to stand. I would cite in that regard our corrections exemption. Whether you approve or not of our decision, we cast it in just those terms, saying that this sex bar as it applies to the tight security jobs in the jails is necessary because there is a compelling interest having to do with the state interest in public decency.
Now, rightly or wrongly, whether you disagree or agree with our outcome, we are using that same test that she has put forward, and I think it makes a great deal of sense, because if you look at some of the newer heads of discrimination, such as age, or physical disability, it is clear that they cannot just be prescriptions.
I have never heard an argument that I thought was worthwhile to suggest that one could have a flat prohibition and say that we cannot apply a reasonableness test.
I think, therefore, the proposal of the Advisory Council on the Status of Women to the effect that these second tiered types of discrimination ought not to be enumerated, are subject to a test of reasonable distinction, is a very prudent suggestion and one which is workable from our position as administrators of statutory human rights agencies because that is what we are doing right now.
Ron Irwin, Ken Norman, Louise Simard (Deputy Chief Commissioner, Saskatchewan Human Rights Commission), p. 22
Mr. Irwin: Well, let me reword that. Section 15 provides nondiscrimination because of race, national or ethnic origin, colour, religion, age or sex. I take it these are the minimum rights that you would expect in a country such as ours and that we would step this from there?
Mr. Norman: Yes. I think I would rather put emphasis on the introductory words, saying that the minimum value that we are addressing in the antidiscrimination provision is equality in law, which embraces both equality before the law and equal protection of the law, and then where you go from there is a matter of draftsmanship. In the present Charter, Section 15 as it stands, those listed categories, I would agree with you, should be treated as minimum categories although, as I have indicated, particularly with regard to age, there is need for some considerable attention as to how that plain prohibition is going to actually be implemented by commissions such as ours when there is all sorts of legislation on the books which perhaps quite rightly draws distinctions on the ground of age, particularly for minors.
Ms. Louise Simard (Deputy Chief Commissioner, Saskatchewan Human Rights Commission): Mr. Irwin, if I may add to that as well, I would like to say that I think Section I5 as it is presently worded does present a difficulty and it may also make it impossible, for example, with respect to sex, for a legislature to enlarge on the definition of sex if we have a Supreme Court decision such as the Bliss decision because, for example, if the Charter is entrenched it then becomes part of our constitution and in that Charter the Supreme Court would be given the final say. If the Supreme Court interprets sex as not including pregnancy or pregnancy related illnesses, then I do not think it would be open to a province to legislate in that area.
Mr. Irwin: Let me deal with that. I am afraid I agree with Mr. Hnatyshyn on this, there can only be one Supreme Court of Canada, and I look on the Human Rights Commissions as complementary to the Supreme Court. There can only be one body, whether it is the Human Rights Commission of Saskatchewan or the Supreme Court of Canada, who will make final decisions.
On the other hand, I agree with you, I do not expect the Supreme Court to run around enforcing or holding hearings because I do not anticipate it will be neighbour A going against neighbour B, it will be employee A going against big
company B or transportation commission C. So, if we do not have human rights commissions then there would be very little or minimal enforcement and I cannot see everyone who is wronged running to the Supreme Court. For one thing, they cannot afford it.
However, on the other hand, you may have your differences with the Supreme Court of Canada but the problem is changing the law, not changing who is going to have the ultimate jurisdiction.
Ms. Simard: I think if it is intended, and I believe in a pamphlet that was recently put out on the constitution, it says that there is nothing in the Charter that prevents a legislature from adding to our rights or increasing their protection and I would suggest that that is not exactly the case because, for example, of our experience in Saskatchewan with an increase of rights under the definition of sex, that if we do not have the power to do that because the Supreme Court of Canada has made a decision that it does not include pregnancy nor pregnancy related illnesses, then by all means our ability or the ability of a provincial legislature to move in the area and to add to the rights has been limited
December 8, 1980, Flora MacDonald & Edwin Webking (Chairman, Canadian Federation of Civil Liberties and Human Rights Associations), 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. 24 (click HERE)
Mlle MacDonald: Thank you, Mr. Chairman.
Gentlemen, in your comments tonight and in your very fine brief you made reference to the fact that you supported the proposals almost completely that had been put forward by Gordon Fairweather, the Human Rights Commissioner, but I would suggest to you that perhaps your brief is deficient in one field that Mr. Fairweather addressed, and one comment that he made in his presentation to the Committee is this:
The Charter of Rights should contain an explicit reference to the rights of women.
And he went on:
We suggest adding the following unequivocal principle: This Charter guarantees the equal right of men and
women to the enjoyment of the rights and freedoms set out in it.
And in fact the two women’s organizations, the National Action Committee and the Advisory Commission on the Status of Women both made reference to that as well and I was wondering if you would look again at the proposed Section 1 that you have suggested and that you consider the possibility of amending it, either to the proposal that Mr. Fairweather has made, which equates with the International Covenant on Human Rights, which would read:
The Canadian Charter of Rights and Freedoms guarantees the equal right of men and women to the enjoyment of the rights and freedoms set out in it.
Or perhaps the proposal made by the Advisory Commission on the Status of Women:
The Canadian Charter of Rights and Freedoms guarantees to every person . . .
And you will understand that “person” really means something in the interpretation of the Imperial Privy Council cases:
—guarantees to every person the rights and freedoms set out herein.
Mr. Webking: Well, yes, I think that our position was that we saw that taking place in our reference to the word “everyone”. Everyone having the right to equality. That combined with what is known as the affirmative action program in Section 15 we thought—would cover it. It seems to me that if you say “everyone” has equality, then that simply says it, it takes in everyone.
Miss MacDonald: Actually I was talking now about Section 1.
Mr. Webking: Section 1, yes.
Miss MacDonald: And put in the very basic statement in the Charter of Rights the fact that every person or every man and woman is considered equal and we do not have to then get into some of the other things. That is stated as the most fundamental principle.
Mr. Webking: No, I think that additional wording would simply support what is our feeling on this matter, and I think that something to that nature in Section 1, together with suggestions we have made for Section 15, I think would give the document the kind of force and effect that you have given expression to here.
Miss MacDonald: Let me just turn to Section 15 because one of the concerns of many women flows from the fact that the wording that is there now duplicates the wording that is in the Canadian Bill of Rights and though I know you do not want to be the Supreme Court over the head of the Bedard and Lavell case, nevertheless that was the wording that was used at the time of the Bedard and Lavell cases, and it was felt at that time that it was used in the just administration of the law rather than in the law itself. So that the suggestion has been made that every person shall have equal rights in law, including the right to equality before the law, so that you have the rights in law itself?
Mr. Webking: No, I think that that is simply reinforcing the position as strongly as possible. Again I think that there is a tendency to want to redress past grievances by nailing things down quite clearly and specifically in the Charter and I have some concern about being too specific because I think that will in the long run introduce greater limits and controls in an area where there might be some sort of conservatism in terms of interpretation rather than if the term is as broad as possible.
Again, I think the difficulty with what has been done in the past is simply because it has been done within the framework of each piece of legislation that Parliament has in effect been the last word on that subject and no clear statement as to what is the word on that particular statement, so the courts are finding themselves in this very difficult bind that if they say: this is the final word of Parliament; then they can be accused of usurping the power of Parliament in a system where Parliament is supreme.
So I am a little uncomfortable with using the courts as a reason for this because I think what the courts have done has been within the limitations under which they had to work and I think we have to understand what those limitations are.
December 8, 1980, Pauline Jewett, Lloyd Axworthy, & Stanley Knowles, House of Commons Debates, “Appropriation Act No. 2 (Equal rights of women in the law, Mobility Rights)”, 32nd Parl, 1st Sess, p. 5500 (click HERE)
Miss Jewett: I would like to ask the minister who is responsible for the status of women a few questions which I do not believe have been touched on yet today. One of my grave concerns, as the minister knows-and I hope it is one he shares-is the protection of the equal rights of women in the law, as well as before the law, in the government’s constitutional proposals. Perhaps I should clarify that by saying that this lack of the protection of the equal rights of women in the constitutional proposals has been brought out very vividly by the National Action Committee on the Status of Women and by his own Advisory Council on the Status of Women. Tomorrow morning it will be brought out again. I do not know whether the minister has yet had time to see the brief submitted by the National Association of Women and the Law. It was also one of the main points in the brief given by the commissioner of the Canadian Human Rights Commission. Was the minister simply relying on what the Minister of Justice and the government’s legal experts were saying about section 15 and section 1? Did he at any time this summer when the drafts were proposed take a look, as the minister responsible for the status of women, at the actual wording to see if it would in fact provide women and men equal rights within the law? Did he ask the advisory council for their opinion’? As the minister knows they were preparing many papers for a conference which, unfortunately, could not be held in the first week of September, including a brilliant paper
to which I have referred before by Professor Beverley Baines on women and the law and the constitution.
I was quite amazed when I asked one of the vice-presidents of the Advisory Council on the Status of Women, Madam Lucie Pépin, whether she, the president, or any members of the council had been asked by the minister if they were satisfied with the protection of the equality of women, and she said that they had not been consulted at all. This struck me as extraordinary considering that the Baines paper came out in August and the council was preparing for this conference and preparing a lot of papers with some very sharp criticisms of the government proposals as being totally inadequate, particularly with regard to the before-the-law clause, but on many other clauses as well.
I wonder why the minister did not consult with the advisory council. Perhaps it is more important now to know whether he has since read with some care their briefs and the briefs of others including the one I just mentioned by the National Association of Women and the Law? If the minister does see the strength of their arguments, will he pursue them with his colleagues in cabinet? In fact, it would be excellent if the minister himself would pursue the necessary amendments to the constitutional proposals because, as the human rights commissioner has said, they are gravely flawed, before the committee. Might he perhaps do that?
Mr. Axworthy: Mr. Chairman, the resolution containing the charter of rights is presently being considered by a committee of this House. As I said earlier today, as a member of this House I look forward with interest to its deliberations and recommendations. The reason for the committee is, as the hon. member suggests, to receive representations from a wide variety of groups and organizations and to use its best judgment to extract what they think is proper, effective, useful and helpful from those representations. Obviously, it will not accept all of them because in many cases the recommendations are contradictory.
Miss Jewett: No, they are all the same.
Mr. Knowles: The women are united.
Mr. Axworthy: One reason why this committee of Parliament was established is to bring the judgment of our peers to bear upon that issue. The inclusion of the non-discriminatory rights in the charter was a major step forward for women in this country on the ground that it entrenches their rights. This has never occurred before and the history of our court cases and our jurisprudence shows that we have suffered from the lack of a clear, fundamental law which establishes basic rights against which other rights passed by statutes of this Parliament or by legislative assemblies would have to be judged.
The difficulty encountered in past court cases in which conflicting statutes are involved-for example, the Unemployment Insurance Act versus the Canadian Bill of Rights-is that the courts have clearly stated-and I would cite for the Supply member’s interest the judgment of Chief Justice Bora Laskin in Curr versus The Queen—that where there are two statutes passed by the same House the courts cannot judge which is of more merit, simply because they have both been passed by the same House with the same authority and the same mandate. In many of the cases which have worked against women’s rights, it has been on these grounds. It was not because of a superior law or a fundamental law. The hon. member is disputing with the Chief Justice of the Supreme Court.
Miss Jewett: That is not a case concerning women. You have the wrong case.
Mr. Axworthy: I presume the hon. member can pit her knowledge against that of the chief justice, and that is her business.
Miss Jewett: You have the wrong case, Lloyd.
Mr. Axworthy: Mr. Chairman, I do not have the wrong case. I have looked at this matter very carefully.
Miss Jewett: No, you haven’t.
Mr. Axworthy: I know the hon. member is a fount of most wisdom in this country, but I think she recognizes that there are legitimate differences on the viewpoint and its interpretation.
Miss Jewett: Just facts.
Mr. Axworthy: Regardless, Mr. Chairman-
Mr. Knowles: Can’t you two professors get along better than this?
Mr. Axworthy: Mr. Chairman, I am not attempting to argue, I am attempting to explain, and I thought that the hon. member wanted an explanation. That was one of the major problems in our courts of law. There was not a fundamental law which gave clear signals to the courts upon which they could make decisions. It is on those grounds that many of the cases were decided against the expansion of rights. The entrenchment of a charter takes a major step forward in providing that clear and abiding signal. That was not something that was analysed in the Baines paper, and while it was a brilliant paper in some respects, it ignored some facts in law.
In the second case, I would point out to the hon. member that the entrenchment of rights in the constitution would have the immediate effect of requiring the legislative assemblies and Parliament to go back and re-evaluate the various laws which are available to determine in what ways they contradict or run against the charter. So, without going to court at all, there is an immediate cleansing of the act, a certain catharsis of the law in terms of eliminating discriminatory clauses. This was discussed in cabinet and this is why the three-year time lag was imposed, so that this Parliament and the legislatures could review the laws in their statute books to determine what would have to be changed in accordance with the requirements to
ensure equal rights for people, regardless of their background, age, sex or whatever.
The hon. member would have to admit that this is a major step forward. Even the wording of the act can be changed to strengthen it and it is certainly the intention of members of this government and this caucus to support such cases. That is the reason the committee was established and why it was mandated by this Parliament to use its judgment to see how the resolution and the charter could be improved upon.
The government, the Prime Minister, the Minister of Justice and I have all indicated this to organizations with which we have met. I have met with the advisory council and the national action committee, and perhaps more women’s groups than the hon. member over the last two months, to discuss this matter and I indicated, that we are prepared to look at any proposed changes which would improve upon the law. But we do want to see the committee’s considerations because 1, for one, would not want to impose my judgment on that committee. It has a mandate from this Parliament which I respect, and I assume that it will follow through, listen to briefs put before it, then act and use its judgment accordingly. It is very important that we recognize and respect the due procedures of this House.
It would be wrong for the hon. member to try to create false confrontation where there is none because we have already indicated our interest in improving upon the charter and our interest in looking with favour upon the recommendations of the committee.
Miss Jewett: Mr. Chairman, the reason I was so conciliatory is because I am so concerned about this matter that I want the minister to give it serious attention. That is why I have been trying to talk about it in a non-confrontational way. The fact is, the minister has not read the briefs very carefully or, if he has, he has not understood them.
They are not contradictory. I am speaking now of the Human Rights Commission brief, the NAC brief and his own advisory council brief as well as the National Association of Women and the Law brief. All hone in on the same point so it is wrong to say that they are contradictory. They all point out very carefully that the matter is complex and that entrenchment of the same words will not do any good at all. The most recent brief points out that an examination of the two leading sex inequality cases, Lavell and Bliss, reveals that the decisions did not turn on a difference between a statutory and a constitutional standard for equality. It says that they are not at all confident that the Supreme Court will begin to interpret this clause, which is worded exactly the same as it is in the Canadian Bill of Rights, in a broader way simply because it is entrenched and that in their view these words are likely to receive exactly the same interpretation after entrenchment as before. That is the view of all of the constitutional experts who have helped these groups to prepare briefs. There is no contradiction whatsoever.
The Curr case that the minister mentioned is irrelevant. The Baines paper did discuss it very briefly because it is not relevant to the equality of women.
As to the three-year time period, Mr. Chairman, they have all said the same. The only part of the constitutional document that says this clause does not have to be enforced for three years will prevent a good deal of the inequality that now exists from being adjudicated. This is a very serious question. I am glad the minister has talked to these groups but I am sorry that he did not consult them ahead of time, particularly the advisory council. I think they would have been helpful in drawing up the constitutional proposals in a more reasonable fashion in the first place.
I am sorry that the minister has not taken up the cause more vigorously than he has to date. I would have thought that one way to do that would be to use his influence with the Minister of Justice and his department to ensure that the changes unanimously agreed upon will be made. I hope he will reconsider his rather laissez-faire attitude on a matter that I am sure concerns him as much as it does all the women for whom, in a way, he speaks as the minister responsible for women.
December 9, 1980, Jim Hawkes & Wilson Head (President, National Black Coalition of Canada), 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. 13 (click HERE)
Mr. Hawkes: The National Advisory Council on Women, in their brief before this Committee, suggested that race and sex were determined at birth and therefore were characteristics of individuals that could not be changed and they felt that within the Charter that some consideration should be given to clauses that dealt with those two characteristics separate from some of the other characteristics such as age, religion and so on.
I am wondering if you have considered that perspective and whether you have any advice to us on that perspective?
Mr. Head: No, I do not think I would have any advice to you on that. It seems to me that we ought to prohibit discrimination on any arbitrary ground, any grounds having nothing to do with the merits of a person for the particular job or the particular service they are applying for. I do not know whether their need be a special reason along those lines but maybe they have some that I do not know about.
Deborah Acheson (Member of the Steering Committee. National Association of Women and the Law), Monique Charlebois (Member of the Steering Committee, National Association of Women and the Law), Pamela Medjuck (National Steering Committee, Nova Scotia), Tamra Thomson (Ottawa Caucus, National Association of Women and the Law), p. 50
Ms. Acheson: The National Association of Women and the Law is a national organization of lawyers and others concerned about legal issues as they affect women in Canada today.
The organization is comprised of approximately 20 member caucuses throughout Canada, and other individuals. The organization meets nationally biannually. During the interim period an elected Steering Committee provides liaison on a national basis with the member caucuses.
I am chairing this meeting with you today. My name is Deborah Acheson. I am the Steering Committee member from British Columbia; I am a lawyer in private practice in British Columbia.
With me at the table, to my immediate right, is Monique Charlebois. Monique is the member for Quebec of the Steering Committee. On her right is Pamela Medjuck. Pamela is the member for Halifax, Nova Scotia and represents the Atlantic Region. On her right is Tamra Thomson and Tamra is a member of the Ottawa caucus.
Also with us are Mary-Ann Nixon who is seated behind me, in the centre. She is the Steering Committee member for Ontario; Mona Brown who is the Steering Committee member for the Prairie and Margaret MacPherson of the Ottawa caucus.
As you can see we are representing here today women from across Canada. We made a special effort to have here for you today a cross section representation of women who are involved in the legal profession in Canada today.
We recognize. a number of advantages fall from entrenchment of a charter of rights and freedoms into our constitution. Firstly, it is symbolic and educational as a statement of the value placed on human dignity and integrity in our society. Secondly, an entrenched charter would bind both the provincial and federal governments to a uniform standard. We view that standard as exceptionally important.
Thirdly, by requiring adjudication by the courts. it would provide Canadians with an alternative forum to the elected legislatures for enforcement of their basic freedoms and rights.
However, we cannot and do not endorse the entrenchment of a charter as poorly articulated and substantively inadequate as this one. in our view the proposed Charter offers little protection to Canadians and will cement inequalities now existing within our society, particular insofar as women are concerned.
Although the expanded role of courts opens another forum for the adjudication of human rights issues, there are dangers to be avoided in granting the courts greater power. Canadian jurisprudence illustrates the Supreme Court’s reluctance and indifference when considering women’s assertions of their legal right and their right to equality.
If the courts are to be given strong powers in this area, then they must also be given strong and clear guidelines within which to exercise those powers. More importantly, the existence of the Supreme Court of Canada, the final court of adjudication of such rights, and its composition must, and I cannot stress this strongly enough, must be guaranteed in the constitution. You cannot have a constitution which sets up rights without having a court in which to secure those rights. For all we know it could be the government’s intention to abolish the Supreme Court of Canada and have the Courts of Appeal of the provinces as the ultimate court of appeal.
I do not think that is very likely, but there is no guarantee in this constitution that we will have a Supreme Court of Canada. Judicially, women have looked to the federal government to protect their rights and we are looking to this government now and we expect some action on this constitution with respect to the question of the entrenchment of the Supreme Court of Canada.
This leads to a discussion of the Supreme Court of Canada and Section 1 of the Bill of Rights. Which will be led by Monique Charlebois, member from Quebec.
Ms. Monique Charlebois (Member of the Steering Committee, National Association of Women and the Law): I will be dealing with the composition of the Supreme Court.
The present Supreme Court of Canada is composed of nine members, three of whom are trained in the civil law system. Proposals for reform of the court have included alteration to increase the representation on the civilian side to four members in a court of nine or to five members in a court of eleven.
Although the Supreme Court of Canada Act does not require it, practice has assured that a balance of members from all regions of the country are appointed to the court as well.
Yet, although women make up one half of the population, no such rule either legislative or procedural has been developed to ensure that women are represented on our highest court.
We take particular exception in fact to recent statements by Justice Minister Chrétien to the effect that qualified women are not to be found. The Royal Commission on the Status of Women recommended in 1970 that women should be appoint-
ed to all levels of the judiciary, particularly the Supreme Court. Since that time eight justices have been appointed to the court, all men. Despite the presence of outstanding women lawyers and judges in every region, no women have yet been named to the Supreme Court.
This is a significant omission. We cannot stress that enough. Professor Beverley Baines, in a paper prepared for the Canadian Advisory Council on the Status of Women, described the problem as follows. A study of American cases carried out in 1971 is a case in point. The study analyzed a representative selection of American judicial opinions in which the judges were responding to allegations of sex discrimination. Their conclusions were that the performance of American judges in sex discrimination decisions ranged from poor to abominable.
The authors found particularly noteworthy the contrast between judicial attitudes in sex discrimination cases and those in race discrimination cases. They reported that although judges have largely freed themselves from patterns of thought that can be stigmatized as racist—at least their opinions in that area exhibit a conscious attempt to free themselves from habits of stereotypical thought with regard to discrimination based on colour. With respect to sex discrimination, however, the story is different.
Sexism, which is defined as the making of unjustified or unsupported assumptions about individual capabilities, interests, goals and social roles solely on the basis of sex differences, is as easily discernible in contemporary judicial opinions as racism ever was.
The Canadian Bar Association in its publication on the constitution Towards a new Canada justified diversity of membership on the Supreme Court in the following terms.
There is no doubt value in having members chosen from the various parts of the country, so that they can bring with them an understanding of the situations in which the law is to apply throughout the land. Defined representation for Quebec is justified because of the different legal system in that province. it also ensures that the Court is sensitive to the particular values of one of Canada’s major cultural communities. Law does not exist in a vacuum. It must be interpreted and applied with a full understanding of the country and its people.
We doubt that a full understanding of the Canadian people is possible when only one sex is represented on the court. The need for such full understanding will become even more critically important when a court is charged with the duty of interpreting the charter and the guarantee of equality for women and men as it will be set out therein.
Our criticism of decisions on sex discrimination which have been issued by the Supreme Court will be discussed in greater detail by my consoeur, Pamel Medjuck.
We therefore recommend that the constitution guarantee a representative number of women on the Supreme Court of Canada. Women must be represented on lower courts as well. but the Supreme Court, as our final court of appeal, is of particular importance.
The appointment of women, of course, will in no way limit representation on other bases since women can be found in all regions of the country and since they make up one half of all ethnic and religious groups.
Our next item deals with Section I which we call the Mack Truck clause because a person could drive one right through it. We do not intend to dwell at length on this section which creates such loopholes in the legislation. Suffice it to say that we join with the continents of the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women, and the Canadian Civil Liberties Association and other groups in condemning Section 1.
I would just like to summarize a few of our objections. There are two main points. First, Section I applies at all times, it is not limited to emergency situations. Secondly, the standards of reasonable limits that are generally accepted in a democratic society appears to us to allow virtually any legislation passed by a majority in Parliament or a legislature.
Apart from concerns regarding the basic rights and freedoms which we share with other groups, we are concerned that this clause may have the effect of completely negating the protection provided by Section 15 on equality of rights.
Certainly, after the regulations which the federal government imposed after World War II forcing married women out of the public service were generally accepted at that time. With the expectation that unemployment will only increase in the next few years a repeat of such discriminatory treatment of people is quite possible. Already the Economic Council of Canada has recommended an income tested unemployment insurance scheme which would disentitle 90 per cent of married women.
Furthermore. the limitation clause in the international Covenant on Civil and Political Rights to which Canada and all of the provinces are signatories is much more strictly worded, as I am sure you are all aware by now. it clarifies that some rights may never be abridged, not even in war time.
We would suggest that Article 4 of the UN Covenant be a model for Section 2 of the Charter.
There are several essential components which we believe should apply. One, rights can be limited only in an emergency; secondly, the government must have articulated that an emergency exists to exempt any modifications from the Charter. Thirdly, the existence of an emergency is an objective situation which the court must assess and the onus would be on the government to establish that such a situation exist. The standard is to the extent strictly required by the exigencies of the situation. That was the fourth one.
Fifthly, some other rights are protected in all situations, including the right to equality.
In fact, the difference between Section I of the proposed Charter and Article 4 of the International Covenant on Civil and Political Rights is so significant that we believe that the proposed Section 1 would place Canada in a breach of her obligations under this covenant.
We also recommend that the Charter include a purpose clause which should be similar to the wording to article 3 of the United Nations Covenant on Civil and Political Rights.
Such a clause would undertake to guarantee the equal rights of men and women to the enjoyment of civil, political and economic rights set forth in the Charter. The adoption of such a section at the beginning would reflect the intent and spirit of the Charter and provide an over-riding statement of principle to be used in its interpretation. Any ambiguity, for example, in Section 15(1) could be clarified by reference to the over-all purpose set out in Section 1. Any limitations on the rights and freedoms should be severed from this basic guarantee and placed in a separate section. It should be, again, in the form of Article 4 of the International Covenant to which I have already referred.
The next matter is an important question of legal drafting. We are concerned about possible problems of interpretation arising from the use of the word “everyone” throughout the proposed Charter.
While the terms “persons” and “individual” have been defined in successive decisions, the meaning of the word “everyone” or “chacun” has not been settled, which adds an unnecessary clement of uncertainty in future litigation.
Again, we find ourselves in agreement with the comments of the 1975 Joint Committee on the constitution—a Joint Committee of this Parliament which said:
While the words “individual” and “person” refer to the natural entity, we believe that it is the human person that is the proper subject of rights and freedoms. The word “individual” connotes the individuation or distinctness of the human being, but not his or her dignity. We are also troubled by the limitation to natural persons or individuals of the right to the use of employment of property, and the right not to be deprived thereof except in accordance with the law. We can see no primafacie reason why corporations and groupings of persons should be denied this protection.
The British North America Act used the word “person” in relation to qualifications for the public office of senator and that in 1929 the judicial committee of the Privy Council overruled the Canadian Supreme Court to hold that this concept includes women.
In view of the difficulties which would be caused by the introduction of such vague terms as “everyone” and “chacun” it is recommended that the phrase “every person” “toute personne” be inserted in its place wherever it occurs in the Charter.
Ms. Deborah Acheson (Member of the Steering Committee, National Association of Women and the Law): Gentlemen, there is another important aspect of language, and that is the use of the word “distinctive” rather than “discrimination” in the drafting of this Bill.
We are suggesting that the word “distinctive” should be used in Section 15. The value-charged word “discrimination” implies something bad. Much of the discrimination which offends women may be fairly described as paternal benevolence. We are treating them well, but differently.
This brings us to a discussion of Section 15, and that discussion is going to be led by Pamela Medjuck from Nova Scotia.
Ms. Pamela Medjuck (National Steering Committee, Nova Scotia): First of all, a point we would like to bring up, though not of great significance to the public but is of significant legal interpretation concerns the title of Section 15. In the Charter the government proposes, the title is Non-discrimination Rights. We believe it would be helpful to subsequent legal interpretation if the title were equal rights. We would like to avoid the use of a negative term which does not set out the affirmative standard that Section 15 is aspiring to.
Therefore, we recommend to the Committee that the title of Section 15 be changed to equal rights. The problem with Section 15 is basically in the wording. 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.
We find there are two grave problems with the formulation of Section 15, as it now stands. The first, as I have said before, is the narrow, restrictive manner in which the principle is set out in the title.
But the second problem is more substantive, namely, the lack of guidelines to the courts which will be interpreting the Charter.
“Equality before the law” is a phrase used basically as a fundamental guarantee to all Canadians. The first right granted in this Section is this right to equality before the law. We believe that wording of this kind has already been interpreted in the Supreme Court of Canada, as in the cases of Bedard and Lavell, to mean equality in the administration of the law and not in the content of the law itself. Such a restrictive meaning of equality allows blatantly discriminatory laws to stand so long as their application in the ordinary courts is equal.
Some have suggested that an interpretation of the phrase “equality before the law” in the context of the Canadian Bill of Rights, has been so narrow because it was a mere statute and that a more generous interpretation will be given to this clause once it is entrenched in the constitution. An examination of the two leading sex inequality cases; Lavell and Bliss, however reveals that the decisions of the Supreme Court did
not turn on a difference between a statutory and a constitutional standard of equality.
We are therefore not at all confident that the Supreme Court will begin to interpret this clause in a broader way simply because it is entrenched.
I think the point is important to be made that entrenchment itself is not a protection. The protection for equality comes from guidelines clearly articulated in a charter. We believe that Section 15 does not set out these kinds of guidelines. Quite the contrary, in our view, these words are likely to receive exactly the same interpretation after entrenchment as before.
This, after all, is the message being given to the court by entrenchment of the same words.
Any progress in discrimination cases will therefore rest upon the second “guarantee of equality” in Subsection 15(1): “equal protection of the law”.
To sum up, as far as equal protection before the law is concerned, we do not feel that these words have been successful, and unless they are changed, we do not feel confident of any future success.
Now, with regard to equal protection and benefit of the law, Section 15(1) also promises the equal protection of the law. Again. this wording is substantially similar to the present Canadian Bill of Rights with the addition of the word “equal”.
Since the words “protection of the law” have not been interpreted to add to the right of “equality before the law”, any new right encompassed by this phrase must be found in the addition of the word “equal”.
We do not believe that this subtle change in the wording of the equality clause will be sufficient to overcome the past restrictive interpretation given to the words “equality before the law and the protection of the law”.
The principle should be generously and broadly stated so that there is no doubt whatsoever that the purpose of the Section is to guarantee to every person their human right to equality in the fullest sense.
We are concerned that the word “protection” is too restrictive because this ordinary meaning would not include “benefits” or “privileges”.
When the phrase “equal protection” was included in the American constitution in l868, in the 14th Amendment, there were no social welfare benefit programs around at the time. Now we have these programs. We think we should avoid the problem of the litigation the Americans are facing in trying to broaden the word “protection” to include in the constitutional guarantees, benefits. We should learn, from their experience that the courts have had a hard time in stretching that concept. If Canada is taking the opportunity now to offer protection and benefit, it is not too demanding to ask that those words be included.
Also, because the courts have tended to take a strict and very literal interpretation of human rights in Canada, we think that every possible mechanism for guiding them and directing
them how to interpret the Charter should be made available. Including the word “benefits” does this, and it is not difficult to put in a few words.
We therefore recommend that the words “and equal benefit” be added after “equal protection” in Section 15(1).
The next problem is the legal standard problem. No guarantee of equality is ever absolute. The court does have an inherent power to define the boundaries of any rights in the Charter.
For example, we are all willing to include protection for freedom of speech, and yet we do not ever intend this to include freedom to defame others or to slander others.
Rights do exist and are propounded in an absolute sense, but aspects could never be existing in it, so we have to give our court direction as to how to restrict them and when.
Thus, the court will have a duty when interpreting Section 15 to determine which distinctions amount to discrimination and which are reasonable and should be allowed,
The American courts have developed a “suspect classification” test in relation to discrimination on certain invidious grounds. For example, race can rarely form a proper basis for differential treatment in law. In such cases the onus is on government to prove a compelling state interest for the distinction in order for the law to be upheld. The court must not only evaluate the purpose of the legislation, but must also determine if the purpose could be achieved in another nondiscriminatory way.
However, a majority of the American court has not yet applied this “suspect classification”, sometimes called “strict scrutiny”, test to distinctions made on the basis of sex. It has, rather, adopted a middle test somewhere between “strict scrutiny” and “reasonable distinctions” to apply to sex inequality cases.
Professor Beverley Baines has identified five different tests which the Canadian courts have developed to aid interpretation of the equality clause in our present Bill of Rights. The best of these appear to resemble the “reasonable classification” test which the American court applies to cases of discrimination on grounds other than race or sex.
The Canadian court has never applied the “strict scrutiny” test in any discrimination case.
Because immutable characteristics, such as sex and race, are unrelated to the ability or capacity of a person, we believe that a strict standard must apply to them. in the words of the paper presented by the Canadian Human Rights Commission, distinction should almost never be made on these grounds. We would like to point out, while we do support Mr. Gordon Fairweather’s comments that these distinctions should never be made, we cannot agree with his recommendation which includes that age should be included with race and sex. We do not believe that. Otherwise we are supporting his principles; not the wording of his recommendations.
To ensure that our courts will take this approach, we believe it will be necessary to clearly state the standard in Section 15.
We therefore recommend that Section 15 specifically provide that a compelling reason must be given for any distinction on the basis of sex, race, national or ethnic origin, or religion.
Regarding other prohibited grounds, age, physical or mental handicap, marital status, political belief, sexual orientation and previous conviction, we would emphasise that not all “inherent” classifications are necessarily invidious, to use the American term. The example of age comes immediately to mind. While some legal distinctions on the basis of age are improper and therefore ought to be prohibited by Section 15, many distinctions based on age are perfectly appropriate because they fairly relate to different levels of capacity.
It is appropriate, for example, for children who have been convicted of committing criminal offences not to be given as severe a penalty as adults. Equally, we do not want to have the ‘vote in Canada extended to children four years of age. These types of reasonable distinctions are acceptable in law.
This is not to say that unfair, unreasonable distinctions on the basis of age should be tolerated.
Certainly Section 15 should forbid discrimination on this ground. Our point is that the judiciary should apply a different, a more stringent, test to laws which distinguish on the basis of the invidious or the suspect categories, such as sex or race, than to laws distinguishing on other bases, age, handicap, et cetera.
To achieve this, Section 15 of the Charter must make it clear that a suspect classification test, that is, a strict scrutiny test, should apply to certain types of discrimination. To fail to do so will result in this standard for all differential treatment being reduced to the lowest common denominator, i.e. the reasonable classification test,
A number of grounds which should receive judicial scrutiny have been left out of the Charter. The more obvious ones are: marital status, physical or mental handicaps, political belief, sexual orientation and previous conviction. It is important to include marital status because often discrimination against women is disguised in this form. The language of Section 15 should permit the court to scrutinize legislation on these grounds. The present wording of Section 15(1), because it provides a finite list of prohibited grounds, will not permit the necessary expansion.
In addition, new ground may be recognized in the future which we cannot now anticipate. To achieve this, either no list should be included in Section 15(1), or words such as “on any ground including” should be added before the list to clarify that it is not all inclusive.
Our first preference would be to include no list at all to provide for the more expansive possible application of the
section. However, we do recognize the concerns of groups such as the mentally handicapped who may prefer the protection of a list of ground which includes them.
The difference in the terms “any distinction” and “any discrimination” is very significant to our point of view. The value-charged word “discrimination” should be avoided if at all possible. Problems have arisen in interpretation of the word “discrimination” in that courts generally feel that they must find that the complaining party has been subject to harsher treatment than others. in the Burnrhine case, 1974, the Supreme Court of Canada upheld the provision under the Juvenile Delinquence Act which imposed a much longer term of incarceration on a young person than an adult could have received for the same offence, on the ground that he was benefiting from a longer period of rehabilitation. The” word “distinction” here would squarely focus the courts on the primary issue: differential treatment of persons in like circumstances.
I am just going to read now the recommended wording that we are putting to the Committee for Section 15: taking into account all of the points raised, we therefore recommend that Section 15(1) be redrafted in two subsections using the following approach:
Our first preference would be:
Section 15(1) every person shall have equal rights in law including the right to equality before the law and to the equal protection and benefit of the law; and
(2) a compelling reason must be shown for any distinction on the basis of sex, race, national or ethnic origin, colour or religion.
We prefer this because it is much cleaner. The only restriction mentioned in it is the compelling reason. it is an affirmative statement and not a negative denial on certain grounds.
However, another acceptable formulation would be:
Section 15(1) every person shall have equal rights in law, including the right to equality before the law and to the equal protection and benefit of the law without unreasonable distinction on any ground including sex, race, national or ethnic origin, colour, religion, marital status, age, physical or mental handicap, sexual orientation, political belief and previous conviction; and
(2) a compelling reason must be shown for any distinction on the basis of sex, race, national or ethnic origin, colour or religion.
Just to reiterate, we do prefer the drafting, I said it before, but my second suggestion is preferable to the present one, so if we have to be denied our first preference, we will take the second preference over Mr. Trudeau’s offer.
This approach includes several important improvements over the proposed draft, and just to summarize:
1. The emphasis is placed on equal rights in law;
2. equality of benefits is guaranteed as well as protection;
3. new grounds can be added since there is no list, or else an open-ended list;
4. a strict scrutiny test will apply to distinctions on the traditional grounds of race. sex. national or ethnic origin. colour or religion.
5. The court may apply a strict scrutiny test to the other grounds or reasonableness test as circumstances warrant.
Ms. Acheson: That then brings us to a discussion of the affirmation section and the sections respecting native women, evidence and legal rights which will be led by Tamra Thomson, of the Ottawa Caucus.
Ms. Tamra Thomson (Ottawa Caucus, National Association of Women and the Law): We are speaking now of Section 15(2) in the proposed Charter. This grants the right to have affirmative action programs. and of course any meaningful guarantee of equal rights for women must not preclude the methods necessary to overcome the cumulative effect of past discrimination. Therefore, we have a necessity for affirmative action programs. However, these programs are necessarily an exception to the specific prohibition against distinction. Therefore, any exception must be very tightly worded so that it does not subvert the first function of the equality clause which is specifically to prevent distinction and discrimination.
The wording which we have recommended is set out on page 14 of our brief. It reads as follows:
Nothing in this Charter limits the authority of any Parliament or the legislature to authorize any program or activity designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by any group of individuals when those disadvantages are or would be based on or related to sex, race or other ground protected under Section 15(1).
I would just like to go back to the typographical error which does appear in the brief, on the sixth line of the recommendation. It should read “group of individuals”.
We feel that this proposal has many advantages over the proposal in the Charter. First of all, it expands the affirmative action section to nothing in this Charter. This parallels the wording of Section 16(2) which allows for the extension of language rights.
Secondly, it requires that any proposed affirmative action program first be scrutinized by government, and of course this is important so that any means of getting around this is tightened up, the government first of all has to scrutinize the program.
Thirdly, the proposal limits affirmative action programs to disadvantaged groups and not to disadvantaged individuals.
And fourthly, and possibly most important, there is nothing in this Section 15(2) of the proposed Charter which relates the disadvantaged groups which an affirmative action program is supposed to relate to, back to the grounds of prohibited distinction in Section 15(1). We feel this is a serious omission because it could permit, for example, the program to overcome
regional disparities which could discriminate on the basis of race or sex. So by referring the affirmative action subsection back to the prohibited grounds we would ensure that this problem does not arise.
December 11, 1980, Christine Bearchell (Member, Canadian Association of Lesbian and Gay Men), 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. 24, p. 36 (click HERE)
Ms. Bearchell: In terms of the hope that the inclusion of the term sex might provide protection on the basis of sexual orientation there is a case that has been before the courts in Ontario for sometime now of a man, John Damien, who was a racing steward with the Ontario Racing Commission who was fired from his position, his employers admitted, solely on the basis of his sexual orientation and that his job performance was otherwise excellent.
In attempting to sue his employers for wrongful dismissal, John Damien approached the Human Rights Commission in Ontario to see if he was in fact covered by the provision of the term sex in that code and the court ruled that in fact he was not. that sex in that code referred specifically and exclusively to gender.
Mary Corkery (Coordinator, Canadian Committee on Learning Opportunities for Women), Jim Hawkes, Lorne Nystrom, Linda Ryan Nye (Canadian Committee on Learning Opportunities for Women), Monique Burchell (Canadian Committee on Learning Opportunities for Women), Senator Bird, Vincent Dantzer, Senator Rousseau, & Senator Tremblay, p. 66
Ms. Corkery: We have some more things to say. We certainly appreciate Monique’s sharing her experiences and asking the questions to which probably none of us has clear answers.
I would like to conclude our presentation by returning to our recommendations which are on page I of the brief which we have presented to you.
What we have presented so far are our concerns in general, our rationale, the reasons for dealing with this issue at this
time, and some idea of what it means to the hundreds and thousands of women who are unemployed, or underemployed and unable to manage to reach a level of economic sufficiency for themselves and their families.
Our recommendations are:
Whereas the Canadian government has fully supported, at an international level, the basic human right to learn-and we have documented these various agreements in our appendices; whereas in Copenhagen, July 1980, in signing the Convention on the elimination of all forms of discrimination against women, our government has recognized the potential of learning opportunities to change the disadvantaged position of women; therefore, the Canadian Congress for Learning Opportunities for Women urges the Government of Canada to ensure the realization of such commitments within our own nation through the Canadian Charter of Rights and Freedoms in the following way:
We ask you to add a new section which guarantees the freedom to learn, that is, the right of access to learning programs as a means to participation in the democratic process, as a preparation for paid employment leading to economic independence, and for more effective involvement in family and community life.
We also urge amendment of Section 15(2) so that women are named specifically as a disadvantaged sector in our society.
Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, Miss Corkery.
I would like to invite Mr. Hawkes to open the discussion with our guest witnesses.
Mr. Hawkes: Thank you very much, Mr. Joint Chairman.
I would like to take this opportunity, on behalf of members of the Committee, to welcome you. We are very pleased to see you here today.
One of the things that you do for us, and perhaps to us, on this occasion is to bring to life the reality of the consequences of constitution writing, the procedures which have existed up to this point you have identified as somewhat less than perfect, and our exercise is hopefully to make them, if not perfect, as near perfect as we can. That is as the ultimate goal.
I have the honour to be both a relatively new member of Parliament, but also at this time a Vice-Chairman of a task force of this Parliament, the Employment Opportunities in the ’80s, and we have had occasion, seven of us in this Parliament, to travel to large parts of this country and we will be doing more travelling.
We have encountered representatives of many groups, but including women’s groups, and much of what you have had to say to us today, those of us who have served on that Committee—has been said to us before in somewhat similar and in some cases dissimilar manner.
But the existence of that lack of access is at least in our minds, well documented. I am not at all sure how we translate that into the context of the constitution.
So I would like to explore a couple of questions with you. I have tried my best in the limited time available to me to go over your brief two or three times, There is one article near the back, as a consequence of the Economic Council’s 1975 examination of education in Canada, and in particular Clause 295 which is on the second to last page of your brief. I should like to read it:
The need now is to put in place greatly improved mechanisms for interprovincial co-operation, and for federal-provincial discussion and co-operation on a multilateral basis.
The reason I have identified that clause is that part of your brief speaks to the chasm, to the fact that so often the problems which individuals have in our society seem to fall between the cracks of jurisdictions or levels of government, between the cracks of programs, even within one level of government.
In that context, also, as these constitutional discussions have proceeded over a time, there are at least some governments who have indicated that their priority for constitutional revision should lie in the area of clarity, of not only rights, but of responsibilities, so that we can more clearly locate who is responsible for what.
I am wondering if this, being a five-year old statement in the sense that it came to us in 1975, whether you, out of your experience, would agree that there is some necessity, perhaps some urgency, for this kind of federal-provincial co-operation, co-ordination. working together to straighten out the situation? Do you have any strong feelings on that?
Ms. Corkery: I think we certainly would, and I think the urgency for that kind of discussion goes back to the days when Lester Pearson was preparing the Adult Occupational Training Act and was discussing with the provinces the various levels of responsibilities, the federal responsibility for training and for employment related needs, which was geared mainly to the economic sphere.
I think we have considered a number of options and we see that as being crucial, that certainly because the responsibility for education has been given to the provinces but in a totally unclear way in relation to the needs of 1980, and because the federal government has accepted some responsibility for employment related training, there has already been a beginning of that discussion.
I think what the CCLOW and the Canadian Association for Adult Education are saying is that a starting point—and a very important starting point—is the recognition of the freedom to learn, and that that is so basic that the lack of that right renders many of the other rights and freedoms in a constitution irrelevant. They are irrelevant to the 2 million people who are not able to be functionally literate, to be able to write and read and communicate. Who knows how many people vote by guessing because they are not able to read the campaign literature. What we would recommend as a starting point and a very important basis for any movement would be a recognition that this is a basic right. We have not located or are unwilling to say that there is a certain point in the Charter of Rights where that ought to be placed. There are a number
of possibilities. Certainly it is very relevant to the discussion of democratic rights.
We also note that you have a section on official language minority rights which could be expanded to other learning rights. Our concern is that that right be guaranteed and that that be the starting point for federal-provincial discussions. Then it is clear that the right to learn is something that this country has committed itself to and that we have some responsibility to work out, to finalize and to find solutions, that the discussion began in 1965-1966, far beyond that, and no solutions have been reached and there is at this point no commitment to reach a solution.
Does that answer your question to some extent?
Mr. Hawkes: I think it goes beyond but in a desirable direction.
I have a continuing concern in this Committee for that proper balance between what courts decide and what elected people decide, and as you talked I was reminded of my last two elections and in fact my first two which came close together, but the experience of going door to door does identify for you the broad range of people and the broad range of educational levels, and that is not an experience that all of us have in other occupations, but you certainly do when you go throughout a riding in federal politics, you do get some sense of that. I think it brings some sensitivity which might not be so readily available to supreme court judges sometimes, the life experience of live people rather than just interpretation of law.
I have one last item I would like to discuss with you and it relates directly to your recommendations and the statement you have just made about you wanting us to guarantee the freedom to learn, but then your next clause I think begins to define or to provide us with a synonym of what you mean by freedom to learn.
You say the right to access to learning, and the critical word for the population which you represent, if I understand correctly previous experiences as well as your presentation, the critical word is access; and as I read that I tried to define the word access for myself and I would like to run a set of words past you and just see if I am on the right track or whether I have missed anything significant. I think that access begins with attitudes, that is the attitudes of society generally, parents specifically that Monique mentioned, and I think there is another part of attitude which is the attitude that women have towards themselves and what it is that they can learn and what it is that they do learn. Those attitudes have been conditioned by things like television, the way the press reports things, the textbooks we learn and so on. But you can not have access without a change of attitude, that once that is accomplished there must be classes, there must be the learning place, the learning format, the learning process; but also there must be finances, and that is particularly true perhaps as we move through life’s stages where we have responsibilities for children and so on. There must be daycare, and I think that is specifically in your brief; and one we might not see as clearly but there must be time, that this reorientation and total educational process is something that does not occur in a short time span but must take place over a long time span.
Is that an adequate definition of access or have I missed something?
Ms. Corkery: I think that probably several of us would like to respond to that somewhat briefly. I would like to make one preliminary comment and that is that I think it is important to distinguish those aspects of access that are structural and that have to do with the way our society is structured or what we are committed to and those aspects of access that are more psychological or social, and I think that we are talking about the former and that is why we are putting emphasis on something being enshrined in a charter of rights.
In our viewpoint, our situation is too urgent to wait for attitude change alone, and we also feel that the reason people have the attitudes they have is because of the structures that exist and what we are saying is that there is no commitment to providing the structure for learning programs for men and for women. There is a particular urgency for women.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes. I would like to invite now Mr. Ron Nystrom followed by the honourable Senator Florence Bird. Mr. Nystrom.
Mr. Nystrom: Thank you very much, Mr. Chairman. I want to welcome the Association before us today and I particularly want to say thank you to Monique Burchell for the telling of her own story. I think one of the most effective ways to make a point in life and a point in politics is to tell a personal story and a real story, and I think it was very effective and I appreciate the story.
I do hope that our country can start offering more equal opportunities for all kinds of disadvantaged peoples. We spend so much money on things that are materialistic within our society, things that are of little or no value. We as a human race spend billions and billions of dollars-a year on armaments for war and for killing and for destruction, and still we invest so little in people.
I have always seen people as our basic resource and I hope that collectively we can move a lot more rapidly towards creating a society based on equality of condition and sharing and co-operation and helping people that need assistance.
We have had many groups come before our Committee. I reflect back, for example, on some of the native Indian groups that came and, one of the other presentations of an individual besides Monique’s that I found quite moving which was by the head of the Saskatchewan Métis and Non-Status Indian groups, a fellow named Jim Sinclair. He talked about welfare and he talked about the fact that the majority of native people, non-status and Métis people in my province, are on welfare. He said, we do not want welfare, we do not want welfare at all. It has been one of the curses that we have had to face. What we want are opportunities, economic opportunities, and if you invest in us as people, we will repay that welfare many, many times over.
I find it very frustrating as a politician that we have not been able to involve our society and persuade the powers that be that we should make that radical departure and invest a lot
more money in ordinary people that need a few breaks because over the course of their lifetime they will repay us many, many times over for investing that money in their lives.
Sorry for that little speech, but I think you made a very useful presentation here this afternoon, and I hope that we are able to play some part through the constitution to fulfill some of those dreams, Monique.
I wanted to ask you a couple of things. What you are asking us to enshrine here is the right to access to learning programs, what we might call social rights in the constitution as opposed to an individual right or a democratic right or a legal right.
Are there any other social rights or economic rights you think are important to enshrine? What about the right to health care, to medical care, the right to housing or the right to an income. Have you thought these through as well? Monique has mentioned the problems of inadequate daycare, the problems of lack of income. What about the possibility of enshrining the right to an income. It may not necessarily be the right to a job. You can have the right to a job or an income and get money from both; but if it is the right to an income it could be through adequate compensation for going to school, vocational school or university, or part of that could be subsidy for daycare.
Have you thought of other social rights or economic rights that could be enshrined that might help the cause?
Ms. Corkery: No. First of all, no, we have not.
Secondly, I think we are in agreement probably with the previous speakers who were emphasizing that we want to be as basic as we can, and I guess we are trying to look at whatever is the root situation.
We have certainly discussed and thought a great deal about the importance of full employment. The logistics of enshrining full employment, for instance, or some such even more specific social right in the constitution are very, very difficult. I think that we are presenting you with the difficult one in suggesting the right to learn.
I think our position at this point is that we have worked mainly on the right to learn because we see that as one of the most urgent and meaningful rights that can be enshrined for women and one that will make an immediate change in women’s social position, at least it has that potential.
I think that is really all that we could say for the variety of other social needs.
Ms. Ryan-Nye: Yes, all that I would add to that, I think, as was pointed out before, one of the key words there is “access”, and in fact under access we are talking a lot of those things. People cannot learn if they are ill, they cannot learn if they are out on the street in a tent, they cannot learn if they do not have daycare. So we are saying basically we must have the right to learn so that we can take advantage of other opportunities that are there for us, but in order to do that we have got to have the access even, let alone the programs. We have
got to have the access and I think: I lot of those things are included in that.
Mr. Nystrom: I think you have answered my second question. I was going to ask you whether or not your interpretation of access or the right to learning programs would include things like the right to an income because if you do not have the funds to go to university, then the right to learn is meaningless, and I think you have answered the second question.
Ms. Burchell: I would like to say something to that first question.
I think one of the reasons, I think, that this particular social change is more wider and more sweeping than the other very important ones that you have mentioned is because, well, I guess to make the economy function people have to be productive and this is the one that has the most potential for making the most people productive in the situation so that we can support the kinds of other rights that you are talking about.
Mr. Nystrom: I want to refer to page 1 of your brief where you quote a UNESCO Report, which is the United Nations Education and Social and Cultural Organization in November, 1968, on our adult education, and it refers to the objectives and goals of adult education policy in terms of some very laudable objectives in the world, and they refer specifically towards women and the problems of women and the need towards achieving self-determination for women, enabling them to contribute to the life of society as a collective force, and I fully understand the special problems of women and I have seen many times the economic statistics of the hardships that face women and the discrimination against women, and I fully agree with you and your second recommendation here that women should be named as a disadvantaged sector of our society, but you do refer to adult education and I am just wondering if you had any statistics as to how much worse it is for women than men because if we enshrine the right, we are talking about the right of course for men and women, and have you done any comparable studies that might be of interest to us or useful to us?
Ms. Corkery: I think we could locate that material. We did not choose to focus on that, and I think that to some extent it can be misleading.
What we have found is that in some cases, for instance, the breakdown in statistics are in various areas. There are levels of skill, there are levels of training, there are levels of basic upgrading and education. In terms of basic education, grade 0 to grade 12, I believe the statistics show that women have a slight advantage, and I think Monique was saying that herself. She was saying: I have grade 12 education, that is even more than most women on welfare.
However, that education is not often relevant to earning a living and supporting oneself, and I think that we were speaking of the need as well for men in terms of the changes in our society. Many women are trained, for instance, to be typists, to be secretaries at a time when secretaries and typists are no
longer going to be necessary. In fact, they are becoming redundant by the day.
Do you want to speak to that, Monique?
Ms. Burchell: I was so busy thinking.
Ms. Corkery: I was going to offer that to Monique since Monique brought that up earlier, that what we are looking at is a kind of continual training and retraining, re-educating process that is going to go on for the foreseeable future. We are not expecting that if people catch up what they missed they will then be educated and trained and we will not need training any more. If that were the case, we could dispense with the Department of Employment and Immigration, the employment portion anyway, because we could plan a program and people would be trained and that would be the end, but our economy does not function this way, anywhere in the world, anymore and our policies and our charters and our structures have not caught up with the changes that are happening.
So it is a continual problem, and I guess the issue about men and women is that we have different kinds of training and that can be very well documented. The amounts are not as relevant as will the training and education we have get us where we need to go.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom.
Mr. Nystrom: Thank you very much.
The Joint Chairman (Mr. Joyal): The honourable Senator Florence Bird.
Senator Bird: Thank you, Mr. Chairman.
I think I should begin by saying I was very much moved by Monique Burchell’s story. She told it well and it had a great impact.
I think what upset me personally, because I worked in this field for so long as you know, was that this is not a unique story. There are thousands of people who have the same experience and I use the word “people” because when I think about education or when I think about the Charter of Human Rights, I think about people. I do not quite see how putting your suggestions into a charter which has to be a declaration in very general terms would really have altered your parents’ attitude towards you, the lack of information that kept you from getting your loan and all the other things that happened, and I think we have to think in broad principles here.
Now, to begin with, under the Declaration of Human Rights that, as you know, we signed in 1948, under Article 26 it already says everyone has the right to education. Education should be free, at least in the elementary and fundamental stages, elementary education should be compulsory, technical and professional education shall be made generally available and higher education should be equally accessible to all on the basis of merit.
Now, as you know, the Charter of Human Rights, the UN Charter, is binding. The provinces have agreed to it, and as you know education is under provincial jurisdiction.
I think that when we are talking about a constitution we have to think in very broad terms. Of course, everyone should have a right to an education and I think you did have that right. It was merely that somehow by bad counselling you did not make it. Maybe you will yet.
I think also, as Mary Corkery has pointed out, it is very difficult for women because they are the ones by tradition supposed to look after the children and if they want to go on and get a higher education so they can support them better, particularly if they are single parent families, unless we supply them with daycare centres that are well supervised they are going to be having themselves in a double bind of guilt and worry and the ill health which goes with all of those things.
Now, I think all of these are very serious social problems and I think everyone at this table, on both sides of the table, would understand this, as Mr. Nystrom has pointed out, and agree to it; but there are several questions that I feel worry me in your presentation.
For example, it would seem to me that you were already protected under Section 15(2). Now, I know a number of people have suggested that women should be included as disadvantaged members of our society, or as groups. Now, of course women are not a group, they are half the population. Some women are discriminated against, some women are disadvantaged, though some of us are not and may be more fortunate.
Now, do you think that it is really a good idea to mention women specifically when they are 51 per cent of the population, surely that Section 2 protects us women but also protects others, and that by putting women in there you are saying that all women are disadvantaged, which of course is not true. We have been for centuries but some of us are less disadvantaged than others, and I wonder if you could put your mind to what I am trying to get at. I am not trying to deprive you of anything by this because, heaven knows, no one cares more than I. It is merely: is this the place to put it? Is it a good idea? Many women who I have talked to are very annoyed at being lumped in like this; those groups that are disadvantaged should be given affirmative action, there is no doubt about that.
Ms. Corkery: I would like to start off our response. We may all want to respond to that.
I think you have raised, Senator Bird, a number of issues, and I have written down a few of them. ‘It is going to be hard to sort them out.
Senator Bird: Well, take them in the order that you think is the top priority.
Ms. Corkery: Well, the top priority? I would start with your statement that not all women are disadvantaged. I believe that we would disagree with you and our brochures reflect that. We believe that the situation is still the case, that women are disadvantaged as women in 1980.
Senator Bird: In education we are talking about now?
Ms. Corkery: Yes, definitely in education. And those kinds of statistics our organization can supply you with liberally. There are all kinds of statistical back-ups for women’s disadvantaged position educationally at every level, and we are particularly concerned with adult education, the kinds of informal and the kinds of learning needs that are related very closely with our economic well-being.
Senator Bird: Can I interrupt there? You would also, and I think you did admit in your presentation, that there are a great many men of that 2 million people that you mentioned who are functionally illiterate, so that by putting women in there I do not want to discriminate against men.
Ms. Corkery: Yes. I do not believe we are discriminating against men. I think there is nothing in our brief, and in fact I think our brief very clearly indicates that we see our issue as being part of a much larger issue and I think that is true of many women’s issues. They are often part of a larger structural issue.
However, we have to begin with our experience and the urgency of our needs, and as we mentioned, quoting the women and poverty reports, women are the poorest sector, they are not a group. We are poor, and that provides a great deal of urgency to our situation, and for that reason we believe, and for the situations that have already been documented well by many other groups such as the Bliss case and the Bédard case, various cases, we do not believe it is enough at this time to assume that disadvantaged sectors will clearly include women. We think that needs to be stated still. Hopefully there will come a time when it is not needed but we do not see that as being right now.
That was only the first . . .
Senator Bird: The first point?
Ms. Corkery: That was one point. Does anyone want to respond to that before we go on to some of the others?
Ms. Ryan-Nye: Yes, because I would agree that I would take umbrage with the fact that not all women are disadvantaged. I think that forming a constitution now or creating a constitution with a charter right now is not only a unique opportunity, but it is a uniquely difficult one because much of the proof of the problems for women, and the proof of the discrimination, has in fact only become very public in the last few years when you talk about even the life of Canada.
Now, I think when you are trying to form a constitution right in the middle of great changes, great
social changes, and yet a constitution is to reflect what we believe, reflect the principles, I think the task you have before you is not only does it have to reflect the principles that we all believe in, but it has to open the doors to the changes that are still necessary in
creating a society that we are still figuring out, and taking into account roles that have changed drastically. The constitution that we would have created 100 years ago should not be the constitution that we create now, and yet we are still in the process of incredible changes and the proof of the discrimination against women simply because they are women, because the attitudes are in the process of change; they have not changed yet, we are all in different places in that continuum. We have to deal with the fact that we are trying to understand the water we swim in. I think that that means this constitution is a little tougher and somehow has to give us the rights that are necessary so that we can come out of this with a society that gives us both the equal place, the equal participation and the partnership that we now know in the 1900s, and not much before, has not been and should be.
So I think you have got to say specific things in the constitution in order to make sure that the changes, which we are still trying to understand, do happen.
Senator Bird: Did you have something else?
Ms. Corkery: l think that that covered a lot of the points.
The other issue, Senator Bird, that you were addressing, I am not sure if I had it clearly but I think there was an implication that because Canada has signed and has committed itself internationally to the right to learn, maybe that does in fact take care of a commitment which everyone is honouring, and what you are saying is that in fact Monique did have the right to learn. there were merely some obstacles in the way and that again is another thing that I would disagree with.
I think that our government has on many occasions, as we have said, signed international agreements stating their commitment to the basic right to learn, What we believe is that that is not enough. We believe that, as with all other rights, it is interesting that most other rights that are recognized on an international level, are also recognized clearly nationally, and in examining what has been happening nationally over the past one hundred years we would say that it is not clear, there is not a clear commitment to the right to learn, and I believe that comes from studying the very difficult relationship between provincial and federal jurisdictions
There seems to be a lack of ownership and clarity about that right to learn. The federal government has accepted responsibility for employment related training, at times when industry has needed people to be trained at moments of great urgency. Before 1966, and there in fact was an earlier agreement. these things were not clearly spelled out.
So, I guess without going into the details of those discussions, it seems to us that that is not clear and that that does need to be made clear and would be a very important starting point for federal/provincial discussion and for a commitment to resolve that gap.
Senator Bird: You wanted to answer it, too?
Ms. Burchell: I just wanted to add a little bit there.
You were mentioning that you did not see how entrenching the right to learn as a right would have changed the situation and I just wanted to say a couple of things on how I thought it might have changed the situation.
Senator Bird: Well, I think what I said was that I thought the Charter as it is now, with a few verbal changes which I am in favour of, of course, and I have no doubt they will be made, does cover your general picture.
Ms. Burchell: I see.
Senator Bird: Well, what I was trying to get at is that you must see that a constitution must deal in very general terms and one of the problems that has been coming before us again and again is that if you get it down into too little detailed structures you cannot keep up with your fast changing society and you get a constitution that is so rigid you just cannot deal with it as your society changes, so that those fundamental points that we made about sex, ethnic origin or the rest of them in that Section 15(1) are of essential importance. While the rest have to be included in that as part of the general picture, but if you get every single section of society included you are going to have a charter which is almost impossible to carry out, I think, but I would like to hear what you have to say.
Ms. Burchell: Well, it seems to me one of the difficulties is that people in our society generally assume that we do have the right to learn and why should we write it in this particular way, into the constitution, and it seems to me that if it was written in this specific way, well then I would be able to say: well, why was I not given this information at the right time of my life?
I could make a very good case, for example, for not having been educated as a matter of fact from the age of about l3. Why was information about ways of going to university and funding not made available to me? If it was a right then I would be able to argue that obligations had not been fulfilled and to try and get the problem redressed. So would everybody else.
The Joint Chairman (Mr. Joyal): Thank you, Senator Bird. Mr. Dantzer followed by the honourable Senator Yvette Rousseau.
Mr. Dantzer: Thank you, Mr. Chairman.
I, too, would like to congratulate the witnesses for underlining what I certainly believe is a very, very basic problem in today’s society. Certainly I think women have a greater need of having the right to learn than men, in that sense you are unique in two of the areas that you did not mention, certainly those areas where a woman has raised a family and now wants to get out in the workforce and she finds it very, very difficult to find adequate training for her at that stage of her life.
Secondly, another problem which I note in my constituency, is that people move into the area, the family, and the woman
in that family has to find a job. The man has moved there with a job being offered to him; she then must go out into the workforce and find an opportunity in perhaps an area where there are few opportunities, and again that is a very unique problem to women.
So that I would certainly support your request to have the right to learn placed in the constitution because I think it is a permanent right, it is something which will always exist in our society. It existed a hundred years ago, it exists today, it will exist a hundred or two hundred years from now. Every individual in our society will always need, and should have, the right to learn. So therefore I can support that concept very strongly.
However, I cannot support so strongly the other request you make to place women as a specific disadvantaged group in the constitution, because that will perhaps, we hope will not always be a permanent problem. Hopefully it will not exist a few years from now. And in writing the constitution I think we would try to make one which insofar as that is possible, I do not believe it is completely, but so far as it is possible to write a constitution which will last, which will need little change and which generally reflects a permanent condition of society, like permanent freedoms and things of that nature, and therefore I would say that I could not support that so strongly and I am wondering whether you have any comment upon what I have said?
Ms. Ryan-Nye: I would be glad to be part of the amendment in a few years to take it out when it is no longer needed. However, right now, again I go back to the fact that the times are not there now and we are very worried because we see the proof under the existing constitution, the times are not going to get there where you are talking about, unless we have got something in the way of a general principle, but spelled out for us, that we can come back to time and again when we have to fight time and again to say: wait a minute, things have changed, and here is how they have changed and here is how this must change in order to reflect that.
I think that that is an example of what we need right now because of the situation right now and because of the way the situation will be for whatever period, and that again, you are right, we want to head towards some sort of society that in fact has these things we believe in now and we have become aware of. We are afraid we are not going to get there unless there are particular advantages in the way some things are worded that face the fact that things have not been right up until now and encourage the courts and the parliaments to understand that better and to move on it.
Mr. Dantzer: I understand your concerns in that regard.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Dantzer.
Senator Yvette Rousseau.
Senator Rousseau: Thank you, Mr. Chairman.
On behalf of the committee, I would also like to extend you a warm welcome. I listened to your presentation very carefully.
However, one question does come to mind. How can we reconcile the existence in the constitution of a Charter of Rights designed to provide minimum protection of human rights and a provinces’ desire to improve its educational system, which after all is partially a provincial matter?
That is my first question.
Ms. Corkery: I think there is no contradiction because there is nothing stating a basic right to learn that would in any way limit any province in terms of how they translate that right to learn. .
In fact, even more basically, we are not trying to specify matters because we have no pretence of being able to solve problems which so far have been irresolvable between the federal government and the provincial governments.
We have no intention of defining how that right to learn should be implemented by federal or provincial governments. What we are saying is that if we have enshrined that basic right to learn, we have the impetus for further action and consultation, and we also have an obligation to work out a solution.
Does that begin to answer your question?
Senator Rousseau: Partially.
I have a second question to ask, if I may, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Of course.
Senator Rousseau: Has your group proposed a clause providing for the implementation of affirmative action programs for disadvantaged groups such as women? I am not saying that women are a group, I agree that women constitute half the population. However, since you mentioned that some women are disadvantaged in the educational system, have you proposed such a clause? If so, could you explain the scope and wording of the clause?
Ms. Corkery: If I understand you correctly, you are asking how we propose to deal with affirmative action for women specifically.
We propose that there be enshrined the right to learn as the right of every adult. Every person regardless of age, covers it very well, I think.
In addition, we feel that the mechanism for enshrining that woman’s disadvantaged position is righted would be part 1, Section 15(2), and that the addition of some specific mention of women as a disadvantaged sector in our society. That is the mechanism that we proposed, the one about which we were speaking with Senator Bird a few moments ago.
Senator Rousseau: If I may, I would like to ask a supplementary question.
The Joint Chairman (Mr. Joyal): Yes.
Senator Rousseau: It is all very well to say you want provision for women in this clause, but do you not think, as Senator Bird and others mentioned, that there are also men who do not know how to read or write, and who have no access
to a decent education. This applies to both men and women. There may be fewer men in this situation, but they do exist.
Do you think we can expect the state, or society, to solve this type of problem?
I personally think that it would be very difficult to include all these problems in a charter of human rights, because the list would be endless. There would be a danger of leaving out some problems, and it would not be because I have not defended women’s rights. I understand your problem. I have listened to the proceedings very carefully, but I very much doubt that we can provide for women disadvantaged in this way in a charter of rights, because women are disadvantaged in areas other than education.
Ms. Corkery: Yes, we are not saying that women are disadvantaged only in education.
It is also important to remember that there are certain very clearly defined and very visible sectors of our society who are disadvantaged. I think very few people will disagree that women are disadvantaged. Men are not disadvantaged because of their sex. I think they are disadvantaged due to a variety of circumstances.
I would like also to point out that there is nothing in our recommendation which is at all exclusive.
We are not saying that other people should not be mentioned or treated under that section. We are only stating that it is very important for women that because of our experience we be named at this time as a disadvantaged sector.
Senator Rousseau: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mrs. Rousseau.
Mrs. Ryan-Nye, do you want to add something?
Ms. Ryan-Nye: Yes. I would like to add something by way of clarification. Section 15(1) and (2) do not keep the redressing strictly to education, and, obviously, our request for a right to learn is not limited merely to women.
We are saying that we have backed up from our promise. We are not here because there is a little problem that we would like you to put into the constitution along with a whole list of others. We have backed up from that problem and come down to the right to learn, what we are saying is that nothing else in this Charter right now will allow us to fight for the changes which must come for the help that must be there in our society, so that it becomes a fair and just society for men and women.
We are saying that if you back-up the problems. you will find those other rights will not deal with the ones that we have had problems with, because we have gone to the Bill of Rights before, and we have gone to the constitution without that right to learn, and we have not been able to come out with the changes and the help and the programs that we need.
The Joint Chairman (Mr. Joyal): Thank you.
I see the Honourable Senator Tremblay would like to add something.
Senator Tremblay: Thank you, Mr. Joint Chairman.
If I understand you correctly, from what you have just said, in fact you are referring to the right for continuing education. Is that the case, do I understand you correctly, both for men and women?
The problem you have raised, if I understood you correctly, is the problem of continuing education. It is a problem of access to learning facilities which would take care of the specific situation of people when they reach the stage beyond what we might call the normal period of schooling?
Is that in fact the problem that you have in mind, and that what you call the right to learn is the right to continuing education, a kind of education which would be adapted to the diversity of situations both of men and women or any category?
Ms. Corkery: I think we are talking even more basically than that.
We are saying that the right to learn, regardless of age; so we are saying we do not even need to say that. We can just say that everyone has the right to learn regardless of their age; so that when Monique walks into a grade 10 or 11 class at the age of 20, no one can say to her, “You have no right to be here.” We have a right to learn at any time.
Senator Tremblay: That is in fact, the concept of continuing education. It means that despite the age or stage of learning you have reached in the school system, if I may use that expression, the school facilities be open so that whatever might be the stage of learning that one person has reached, the school system should be open enough so that that person could just go on from wherever he or she is to where he or she would like to go.
Is that the general concept of continuing education, just called a few years ago adult education? l think the philosophy of the matter has evolved from the concept of adult education to the concept of continuing education.
December 16, 1980, Céline Hervieux-Payette, Delbert Riley (President, National Indian Brotherhood), William T. Badcock (Legal Counsel, National Indian Brotherhood), 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. 27, p. 114 (click HERE)
Mrs. Hervieux-Payette: Thank you so much. Just one final question. When it comes to Section 15 where it is specifying rights or discrimination, talking about discrimination, I would like to ask you how do we separate discrimination based on sex, and discrimination based on the origin, which means that if you pretend to have aboriginal rights, which rights should proceed, the one which you had by birth or the one that you have of course by nature?
Mr. Riley: Aboriginal rights, but I am going to refer this, it is a legalistic type question, I am going to refer it to Bill and as I mentioned earlier, our purpose in coming here is to try to give everyone as complete an understanding of the situation as possible so that I call on the experts, I am not an expert in all the areas, so I call on experts in each of the areas. Go ahead, Bill.
Mr. Badcock: Mr. Chairman, I am not sure I am going to answer your question correctly but I will try. One of the difficulties that we have had with Section 12(1)(b) is the fact, and I do not mean this to sound wrong, but it becomes a red herring al limes because Section 12(1)(b) cannot be separated from the rest of the membership sections very well.
If Section 12(1)(b) is changed, for example, it then has reflections on what happened to children, because indirectly they are affected by whatever happens to discrimination against their mothers. We also have problems in the whole membership sections of the Indian Act between racial determination of Indians and determination of Indians as members of a band. In other words, if a woman is born Indian, there is no one in the world who can tell her that she is not Indian in a racial context. Unfortunately, the government, through the Indian Act, has been able through the years to tell people they are not Indian for the purpose of registering Indians and for the purpose of status. As a consequence I do not think that NIB has ever had to take any kind of a stand whatsoever on whether women should be racially Indians or. not, there is
nothing NIB can do about it one way or the other, nor can the Government of Canada.
We do have problems with the registration part of the Indian Act and the status people have under the Indian Act, and the rights that flow from that status. That is entirely different than saying to a woman: well, now you are no longer an Indian because you married a non-Indian. She is still an Indian for all intents and purposes, she has to be, but she is no longer a status Indian.
Céline Hervieux-Payette & William Badcock, p. 117
Mrs. Hervieux-Payette: What I want to be sure about is when we talk about entrenching aboriginal rights will it mean that we will recognize discrimination based on sex or not? Maybe my question will be clearer this way: if we have a paragraph talking about aboriginal rights, will it mean that we will actually recognize Section 12(1)(b) or will it be suspended, because there will be also Section 15(1)(2)(3), it is recognized that there should be no discrimination in the charter of rights based on sex so which one will precede, the aboriginal one or Section 15? Maybe your lawyer could answer that.
Mr. Badcock: I would suggest, then, if aboriginal rights are recognized under the constitution of Canada, those aboriginal rights will apply equally to all people to whom those aboriginal rights should apply. That is my opinion and that is the way I would like to see it done. I cannot tell you whether that will happen or not, but certainly I would like to see those rights applied equally to all peoples to whom those rights apply. The Supreme Court, itself, though, said that the Lavel case was not abhorrent to the Bill of Rights because she was equal before the law, she was equal as well as any other woman before the law. Well, to me that is fancy footwork. I do not think that is right either. I think that those aboriginal rights should apply to all aboriginal people, yes.
December 18, 1980, Bruce Smith (President of Toronto Ontario East Stake, Church of Jesus Christ of Latter Day Saints), 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. 8 (click HERE)
Mr. Bruce Smith (President of Toronto Ontario East Stake, Church of Jesus Christ of Latter Day Saints): […] First, in attempting to remove discrimination because of sex and age, Section 15(1) of the proposed resolution could end up, perhaps inadvertently, taking away from women and children traditional freedoms and practices they now enjoy. Husbands now are primarily liable for the support of their wives and minor children. If this liability is removed, in the name of equal treatment for both sexes, the protection afforded by this responsibility to mothers and children could seriously be weakened, with tragic consequences for both individuals and society. Women who prefer to remain at home and maintain a traditional family could be unable to legally count on child support from their husbands. Great pressures could be brought to bear on a woman not to marry or have children, and to join
or remain in the labour force. The potential deleterious effects on family life seem obvious, and must be prevented.
Second, if the law must be undiscriminating towards sex, it could follow the laws outlawing wedlock between members of the same sex would be invalid. The argument of a homosexual male, for example, could be, “If a woman can legally marry a man, then equal treatment demands that I be allowed to do the same.” As a church we are totally opposed to the extending of constitutional protection to homosexual marriages. While it cannot be stated with certainty whether this or any other consequence will result from the vague wording of Section 15(1), the possibility cannot be precluded.
Section 15(1) would not provide traditional protection of women against military service. Although Canada does not at present have compulsory military service, the possibility of such being required in the future cannot be overlooked. If women were found physically qualified, they would, unless exemption is provided, be required to be treated exactly the same as men, including service in combat zones in time of war. There are other ramifications of compulsory military service for women which concern us. It is not unlikely they could be compelled, in the name of equality, to live in mixed housing, a situation which would violate the religious and moral ideals of many. These concerns about the need for the constitution to ensure protection of the privacy of both sexes of course go beyond military service, and extend into other areas of society, including college and institutional housing, mother /daughter and father /son activities, and many others.
None of the foregoing should be construed as indicating less than a full commitment to the equality of the sexes. As a church we are fully committed to equal rights for women. The church recognizes men and women as equally important before the Lord and the law. Injustices to women before the law and in society clearly have occurred and still occur. We deplore these, and counsel our members to work energetically for appropriate changes.
Nevertheless, we do not subscribe to the notion that equality before God and the law requires that men and women be treated identically. Reasonable and natural distinctions between the sexes, which recognize and retain the dignity, worth and individuality of both, must be permitted and indeed protected.
We note with approval that the rights and freedoms which the proposed resolution is intended to guarantee do not deny the existence of other rights and freedoms that exist in Canada, referring to Section 24. We think it essential to recognize that some of the inequities in society are the results of attitude; conversely, some of the rights and freedoms we now enjoy exist as a result of tradition, precedent and common acceptance, rather than as a result of detailed laws and regulations.
Mr. Smith: Mr. Chairman, I think the text of our brief addresses this at some length, but just to expand as has been requested, we perceive equality of the sexes, and we have stated that, but while we see equality, we see some well defined roles which are biologically based and we believe divinely granted and supported.
So we see the sanctity of the women as something which is to be preserved and we see Section 15, particularly Section 15(1), as leaving this question open to interpretation which could be, as we said, deleterious to the family.
Bryce Mackasey, p. 13
Mr. Mackasey: Well, you say on page 5 that the Church is fully committed to equal rights for women. If we then go back to Section 15, that seems to be consistent with Section 15 insofar as, shall we say, sex is concerned, unless you want to change the word “sex” to be specifically women, but how do you find that conflicts with the general statement of the Church: we are fully committed to equal rights for women?
Could I not come along and harass you with the thought: well, yes, equal rights for women, what does that mean? What would your answer be?
Mr. Smith: Mr. Chairman, I have not quite followed the honourable member’s line of questioning, possibly he could phrase it more succinctly.
The Joint Chairman (Senator Hays): He is not doing it in Irish this morning.
Senator Lapointe, Bruce Smith, Regan Walker (Executive Secretary, Toronto Stake, Church of Jesus Christ of Latter Day Saints) & Coline Campbell, p. 16
Senator Lapointe: What do you consider as a reasonable and natural distinction between the sexes, and do you not think that women are able to make the distinctions for themselves?
Mr. Smith: If I heard the question correctly, Mr. Chairman, what do we think is a reasonable and natural distinction between the sexes, and then the second part of the question …
Senator Lapointe: Do you think that women are able to make these distinctions for themselves?
Mr. Smith: Mr. Walker has requested the floor to answer this question, and I defer to him.
Mr. Walker: Mr. Chairman. certainly women are ready and able to make any sort of natural distinction. That is not the problem that we are addressing in this brief. The problem is that perhaps the openness of the language of Section 15 could be subject to judicial interpretation such as would leave women and girls and children et cetera in certain instances in an unfavourable position under the law, and we are thinking in terms of such things as co-ed washrooms, housing institutions, the military, et cetera. In other words, there are no exceptions admitted in the language of Section 15 such as would comprehend a situation like that, if interpreted strictly by a court.
Senator Lapointe: You say that husbands now are primarily liable for the support of their wives and minor children but you know very well that thousands and thousands of fathers or husbands are not following that law. So if women do not have equal rights to find work to support their children what can happen? That is why we want equal treatment in finding a job, for example, to take care of the children abandoned by their father, as happens very often.
Mr. Walker: I guess, Mr. Chairman, Husbands are primarily de facto liable for the support of their wives and children. There is certainly some liberated legislation at the provincial levels, for instance, in this respect. However our quarrel is not certainly with the equal opportunity of employment for women. What is of concern to us is that under, once again, the open language of Section 15 that women might be liable for the support of their husbands. That is more of a concern to us than that women might have an equal opportunity for employment. We are certainly in full agreement with the honourable member’s expression of concern that women be given an equal opportunity for employment and advancement, in that respect.
Senator Lapointe: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Senator Lapointe.
Miss Campbell: Could I ask a supplementary on that?
The Joint Chairman (Senator Hays): A real short one.
Miss Campbell: Real short, is right. Just on the background of women and men, when the Human Rights Commission came before us they gave us a couple of clauses, and I would just like to know if you have seen them or not. Have you seen the Human Rights brief?
Mr. Walker: No.
Miss Campbell: They more or less said that the Charter would guarantee equal rights to men and women, of the rights and freedoms under the Charter. I cannot see that that would go against anything, just giving equal rights of the freedoms. Then they went down and they changed Section 15(1) and they said that everyone has the right to equality under the law and before the law and to equal protection of the law without discrimination. I think I adlibbed “before the law” but under the law and to equal protection without discrimination.
They gave a third section to section 15, which I wonder if this would not take care of the fear of the family being eroded, the idea that I personally feel that it is true that men are responsible for the family, perhaps in one aspect of it, but I would like to think that both men and women are responsible for the family together, and for taking care of that family.
Section 15(3) says that this Section does not preclude any legislative distinction which is justifiably necessary for reasons of compelling state interest, and I would ask you to answer this question yes or no, whether or not you would think the interests of the child or the children of the family would not be protected if the legislature so deemed it necessary and it could come in under Subsection (3)(ii) to perhaps compel the husband to be liable or one parent or the other.
December 19, 1980, Allan Blakeney (Premier of Saskatchewan), 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. 37 (click HERE)
Mr. Blakeney: […] There is a large body of people who say that we ought to set out in a charter of rights the aims and aspirations of our society, the values which we hold dear and set them out, whether or not we can live up to them; they are hopes and aspirations. Therefore, they say, we stand for freedom of speech, religion, nondiscrimination and all the rest of it; yet, knowing perfectly well that we do not believe that, knowing perfectly well that nobody believes in freedom of speech; they believe in freedom of speech sometimes, with all manner of qualifications with respect to slander and with respect to not being able to incite hatred against another linguistic, ethnic group or the like, There are a large number of qualifications.
I start out with a proposition that a charter of rights ought to be a minimum of guarantees that we say we will live up to, the minimum. We will go beyond that, but not in the Charter.
So that when someone asks me to say, “You should commit yourself in the constitution not to discriminate on the basis of sex.” when I know we are going to discriminate on the basis of sex, then I have trouble.
As an illustration, there is the problem in Saskatchewan where we have a human rights code which we passed and which says that if you are leasing any accommodation or offering any accommodation you cannot discriminate on the basis of sex. Now that seems innocent enough.
Now, the clear little widow in Saskatoon puts and ad in the paper saying, “Warm, comfortable room for lady boarder”; you cannot do that. We had to change the code to allow her to discriminate, to allow that woman to specify that she wanted a lady boarder and not a male.
We are working on this now with regard to the extent to which women can claim rights to jobs as custodial officers in men’s custodial institutions. That is not an easy problem. That is not a problem which is capable of being solved by merely saying that we are in favour of nondiscrimination on the basis of sex. That is just chest thumping and is not dealing with the essential problems of operating a society and of drawing these lines.
I know that some people believe it is a good idea to state our aspirations in a constitution and to allow the judges to make all the qualifications. I think the essence of government is making a fair number of these qualifications and I say that the judges are not well qualified to do this. They do not have the expertise or the staff. They cannot set up task forces and they cannot find out what the problems are. They may not be terribly sensitive to what the public wants.
Therefore, I tend not to be in favour of a ringing declaration of what we say we are going to do when we know we are not going to do it and to allow the judges to put in the qualifications.
January 7, 1981, P.D. Burns (Director, Canadian Life and Health Insurance Association), 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. 33, p. 88 (click HERE)
Mr. P.D. Burns, Director (Canadian Life and Health Insurance Association): […] Our concern basically centers on Section 15(1) of the proposed Charter of Rights and Freedoms which reads as follows:
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.
In particular, our concern rests with the words “without discrimination because of age or sex”. Both of our predecessor associations adopted a statement of position that endorsed legislation protecting the human rights of Canadians. Therefore we wholeheartedly endorsed the stated objectives of the proposed Charter of Rights.
However we strongly believe that legislation of this type should be applied only to prohibit unfair or unreasonable differentiation between individuals and, unfortunately, wording such as you have before you now could be interpreted to prohibit any and all differentiation between individuals based upon stated grounds and could have an unintended impact on many aspects of Canadian society.
Our intention and objective in appearing before you this afternoon are threefold: first of all, to make you aware of our concerns that the strict interpretation of these words could in fact have an adverse effect upon the operation of the private insurance industry.
Secondly, it is to provide for you information on the logic, the basis and the approach as used by the private insurance industry in the classification of risks; and thirdly, to urge that careful consideration be given before the Committee responds to the pressures or suggestions from other groups who might conceivably be looking for even stricter definitions in the interpretation of those words.
The function of the private health insurance industry or insurance process, really, is to reduce each individual’s exposure or risk to financial loss by pooling it with the risk of other individuals.
For this risk sharing process to operate on a private voluntary basis—and those words are the very key, “private and voluntary”—it is, we think, essential that a charge assessed against each individual be reasonable in relation to the risk which is being shared and also in relation to that risk that that individual brings. In other words, that the cost of insurance be reasonable in relation to the benefit likely to be received.
Efforts to meet this requirement have led insurers to consider many individual characteristics in the structure of premiums and benefits. Variations on such bases as age and sex are common to reflect the obvious variations in mortality and morbidity related to or arising out of these factors; for example, the appropriateness of varying life insurance premiums by age is almost self-evident. The appropriateness of varying
premiums by sex is probably more contentious, but we think equally well founded. Variations in life and health insurance premiums on these bases is not prohibited in any jurisdiction in Canada or elsewhere of which we are aware, and we believe it is not your intent that such would be prohibited under the proposed Charter.
Senator Lapointe, Lise Bacon (Canadian Life Insurance Association), Coline Campbell, Bryce Mackasey, P.D. Burns, & James McGrath, p. 96
Senator Lapointe: I would like to ask Mrs. Bacon to explain where discrimination exists with respect to women.
Mrs. Lise Bacon (Canadian Life Insurance Association): The fact that women live longer than men is reflected in life insurance premiums. In this case, there is discrimination against men.
If we think of the risk assumed in the case of annuity insurance, since women have a much greater life expectancy than men, there is discrimination against women in this case.
Simplistic generalizations should not be made. Actuarial procedures and life expectancy must be taken into account. It is assumed that even as infants, females are better equipped to deal with life than males. I think such assumptions are made at a rather early age. However, they are not about to change, despite the different lifestyles women now have and the different work they now perform. It is very fashionable to talk about stress these days, but women experience the same pressures in a constantly changing society. Nevertheless, we still do not have a standard premium for men and women.
It may take some ten years before any change can be made with respect to standard premiums and, once again, who knows what society will be like in a decade. Women still have a much longer life expectancy than men.
They therefore have to pay slightly higher annuity plan premiums.
Senator Lapointe: What are the differences in the case of pensions?
Mrs. Bacon: That is what I mean. Women are paying slightly higher pension annuity plan premiums than men at the present time. Men therefore have an advantage, but they do not have the same life expectancy as women.
Senator Lapointe: You mentioned stress a few moments ago. Men are just as subject to stress as women. Mrs. Bacon: But I also said that even before they are born. women are better prepared to cope with life. Studies have been done. I do not know whether it was in Canada or in the U.S., but studies have shown that women may be better equipped to cope with stress than men are.
Senator Lapointe: So, since they are better equipped and since they have a longer life expectancy, they have to pay ransom.
Mrs. Bacon: We are not yet at a point where women have equality in this regard.
Senator Lapointe: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much. Mrs. Lapointe.
The Joint Chairman (Mr. Joyal): Having no further names on my list—oh, I am sorry. I do apologize sincerely, Miss Campbell.
Miss Campbell: I was on the list because I certainly have experienced discrimination in insurance and I would like to know if the same situation exists today as it did in my earlier working career.
Say you take a person of 25, both single, both working in the same occupation, do they, without being under group, personal insurance, is there today the same discrimination that existed before? You do it over, let us say, all women who are insured at that age group versus the men who have their rates under their group, is that still in existence today?
Mr. Burns: The common approach is to have separate tables for men and for women.
Miss Campbell: And who pays more, the one that has fewer members in that group; is that not right? The straight life insurance on a 25 year old man working at the same job, straight life insurance on death, and a 25 year old woman working, who will pay more?
Mr. Burns: I might give you some numbers which I think will answer . . .
Miss Campbell: Surely you can tell me, we do not have that much time. In my day a woman paid more.
Mr. Burns: For life insurance?
Miss Campbell: For life insurance at that age?
Mr. Burns: Today the woman pays less.
Miss Campbell: All right. Now take a woman and a man who are doing the same job and can afford life insurance, and at the age of 25, you do not think that unless their working capacity changes or that the woman then retires, that they should pay the same amount?
Mr. Burns: I think what you are perhaps suggesting is that the risk classification should be, oh, perhaps unduly scientific and unduly fine. We believe that the factors that are demonstrably important are age and sex. If you are suggesting that we should go further and get into a variety of occupational groups, and I am not talking- . . .
Miss Campbell: I am talking sex. I was talking sex, just for the record, between men and women in the same working capacity. Age, I do not think there is a discrimination because age goes from one level to the next level to the next level, and as long as you classify all men and women in the same level. I can go along with you, but I do not think you can ask this Committee, well, I would hope not, to discriminate on the basis of sex on insurance. I would think that the insurers would find reasonable distinctions and limitations.
The Joint Chairman (Mr. Joyal): Thank you very much, Miss Campbell.
The honourable Bryce Mackasey, you had a short question.
Mr. Mackasey: Just a short question, and also to welcome Madame Bacon to our Committee.
You mentioned Section 1, and I mention it because you are one of the few groups that look on Section I as some desirable protection for the legislatures over the courts; am I right on that?
Mr. Burns: That is correct.
Mr. Mackasey: It seems to me that what you are asking us to do was really arrive at an interpretation a court would eventually be seized with after the resolution is implemented.
Well, let me ask you another way: women are now paying less premium, I suggest, not because of their sex but because of certain characteristics that are identified with that group of people. Am I right or wrong on that?
Mr. Burns: We believe you are wrong. There are some people who would clearly disagree but we believe that it can be demonstrated that, genetically, there are factors that will result in the average female, all other things being equal, living longer than the average male, and therefore we believe that fair play says that for a product which pays in the event of premature death, that the female should pay less and, similarly, we believe that a product that pays for the continued existence, that is an annuity or pension plan, the female should pay more.
Mr. Mackasey: I am only trying to help you but maybe I do not know your industry.
Let us take Bryce Mackasey for the moment, who may have to pay a premium because he is overweight.
Is that because I am male or because I am overweight?
Mr. Burns: Because you are overweight.
Mr. Mackasey: And if I come down to your norms, theoretically, would my premiums drop?
Mr. Burns: Yes.
Mr. Mackasey: Let us take women at the moment, in some categories they are paying less than men?
Mr. Burns: That is correct.
Mr. Mackasey: What happens if in ten years their characteristics, based on studies, have changed so that they are a greater risk; would their premiums go up?
Mr. Burns: If their characteristics change, then certainly the premiums that would be in force for policies sold from that time on would be contemporary because we are dealing with a competitive industry.
Mr. Mackasey: But the point is they are no more or less female, their sex has not changed in ten years, just certain characteristics related to health are changed.
Mr. Burns: It might be helpful if I gave an example of a pattern that is taking place in the life insurance industry now
to introduce lower rates for non smokers, and I think that perhaps picks up on your question or your illustration.
Mr. Mackasey: Well, do you agree with the fact that nonsmoking males pay less or should pay less than smoking males?
Mr. Burns: Yes.
Mr. Mackasey: It has nothing to do with sex?
Mr. Burns: No.
Mr. Mackasey: It has got to do with the characteristic?
Mr. Burns: Yes.
Mr. Mackasey: Why is it not equally applied to women in your table?
Mr. Burns: We have not been aware that society has said it is unfair discrimination to have a lower premium for a nonsmoker than for a smoker. Somebody might.
Mr. Mackasey: Well, I think that society, looking at it realistically, society is saying there should not be discrimination against women. I think society is saying that, and if you are practicing discrimination then the constitution should go after you people and the law should go after you, but I do not think you are.
Knowing the industry fairly well, the interest of private enterprise in making a dollar, they are not discriminating, they are taking into consideration a risk, and I have no evidence in my way and maybe I am trying to help you but you are making it hard, I have no evidence that you are discriminating against women, you are just discriminating against one group of people and you may say that women have certain characteristics that men do not have generally but that is not true of all women; am I right or wrong on that?
Mr. McGrath: Vive la difference.
Mr. Burns: You are correct.
Mr. Mackasey: Then what is your worry, what is your concern?
Mr. Burns: The concern still centres on Section 1 that some people, not the elite, but some people might be concerned and might interpret it literally.
January 8, 1981, Gwen Landolt (Legal Counsel, Campaign Life—Canada), 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. 123 (click HERE)
Ms. Landolt: […] With regard to the expression everyone has a right to life in Section 7 of the proposed charter I should like to mention that in a brief presented to this joint committee by the Advisory Council on the Status of Women they recommended that the word “everyone” as appears in Section 7 of the proposed charter be changed to the word person according to the Canadian Press story, dated November 15, 1980, the purpose of having the word everyone in Section 7 has a right to life changed to every person simply so that the charter of rights cannot be interpreted as being applied to fetuses. This point is not lost of course, because the U.S. Supreme Court formerly decided in Doe versus Wade that the word person did not include the right to life of the unborn.
I should like to point out also to members of this Committee that the Advisory Council of the Status of Women are expressing their personal views only for those members or simply political appointees and do not represent any constituency.
It is indeed insulting to intelligent women in Canada that it is assumed by some that simply because a few women who are appointed by the government express an opinion, that their opinion automatically is regarded as speaking on behalf of all other women. This is nonsense.
It is also discriminatory to assume that only women can speak on behalf of other women. There are in fact many men whose views and philosophies represent the exact views and philosophies of many women in Canada. It should be clearly understood that there is no one single woman’s voice in Canada as women are as diverse as men and vote and think as do men according to their own social and economic backgrounds and not according to their sex.
Women, as many of you married men will probably know, will no more be told how to vote and think by women than they will be told how to vote and think by men.
January 12, 1981, 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. 13 (click HERE)
The Honourable Jean Chrétien (Minister of Justice): […] Equality rights—There has been much discussion of the non-discrimination provisions of the Charter as found in Section 15. I want to deal with this in some detail. First, I want to state that I agree with the proposal made by the Advisory Council on the Status of Women and the National Association of Women and the Law that the section be entitled equality rights so as to stress the positive nature of this important part of the Charter of Rights.
I want to take this opportunity to congratulate all of the witnesses who testified on this section. I want specifically to compliment the Advisory Council on the Status of Women for a particularly fine brief as well as for an impressive presentation before you. The work of the Council has greatly influenced the government as have the presentations of the many witnesses who have spoken on this subject on behalf of women’s groups, the handicapped, and others.
A provision on “equality rights” must demonstrate that there is a positive principle of equality in the general sense and, in addition, a right to laws which assure equal protection and equal benefits without discrimination. To ensure the foregoing and that equality relates to the substance as well as the administration of the law, I would be prepared to accept an amendment to Section 15(1) so that it would read:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex or age.
January 22, 1981, Svend 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. 43, p. 30 (click HERE)
Mr. Robinson: Mr. Chairman, the reason for this proposed amendment to Clause 1 is the following. First of all, it is our submission that the general test which now is in that amended version of Clause 1 being proposed by the government, does not adequately reflect the different types of rights and freedoms which are contained in the proposed Charter.
There are some rights, some freedoms, which should never be derogable, even in times of emergency. They include, for example, the right to protection from cruel or inhuman treatment or punishment. They also include, for example, the freedom from discrimination on the ground of race, colour, sex-in the denial of legal rights under emergency conditions.
Mr. Chairman, it has been suggested by many witnesses and I would point out that those witnesses include the National Action Committee on the Status of Women, the Canadian Advisory Council on the Status of Women, the Canadian Federation of Business and Professional Women of Canada; the submission of the Dalhousie Law Professors, the Canadian Jewish Congress; the New Brunswick Human Rights Commission; the Canadian Civil Liberties Association; Walter Tarnopolsky; Gordon Fairweather; the Canadian Bar Association-many, many witnesses, Mr. Chairman, have proposed that there should be no derogation from certain rights and freedoms in this Charter.
Mr. Robinson: As I say, the proposal is that Clause 1 of the proposed constitution act should be a simple, affirmative statement, guaranteeing all rights and freedoms set out in the
Charter, and in particular, guaranteeing the equal rights of males and females to the enjoyment of those rights and freedoms.
The reason for the addition of that particular clause is in response to the excellent suggestion of the Canadian Advisory Council on the Status of Women and others, modified, instead of “men and women” to read “males and females”, recognizing that discrimination on the basis of sex can occur also with children-a point which was made by the Canadian Council on Children and Youth.
Mr. Chairman, the reason for this, as I say, is first of all we believe that the first Clause in a charter of rights should be an affirmative clause setting out the rights that are guaranteed, and then that there should be an affirmative statement, and a limitation clause is not appropriate at the beginning of a charter of rights-a statement of the fundamental rights and freedoms of Canadians.
January 27, 1981, Lorne 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. 46, p. 15 (click HERE)
Mr. Nystrom: I just want to make a bit of a plea this morning, Mr. Chairman, that we keep an optimistic frame of mind and that we hope that this Committee is an independent committee, that the government members are going to keep an open mind as well, that they will study each amendment according to its merit.
I want to say to you, Mr. Chairman, as I have said before, I think in this country we are in sad need of really radical parliamentary reform to make the committees really meaningful.
However, I do want to say to you, Mr. Chairman, that we have had amendments go both ways. We had an amendment that the Minister said he would accept last week in terms of Clause 2, I believe it was, and the word “everyone” which we wanted changed to “every person”. We had a commitment from the Acting Justice Minister saying it was acceptable to the government in a very similar way to what happened to the Conservative Party on Thursday of last week.
He said it was acceptable to the government, but after considerable debate in the Committee led by the Conservative Party the government members changed their minds and the indications we had were that they were going to vote with us to change “everyone” to “every person”, and that was an important amendment to many groups in this country, women’s groups in particular came here and argued that point of view. I see Miss Campbell is nodding her head in agreement.
Lorne Robinson & Jean Chrétien, p. 70
Mr. Robinson: Mr. Chairman, just one question on Clause 7 as a whole and that relates to a concern which was expressed to us by the Canadian Advisory Council on the Status of Women and a number of other national women’s groups in this country.
Will you confirm, Mr. Minister, that, even though the change in the words from “everyone” to “every person” was not made, that it is your intent that in no way should this
particular clause in any way affect the right of women to obtain an abortion?
Mr. Chrétien: This does not affect that situation. There are laws in the land about abortion.
Mr. Robinson: And this clause would not affect that in any way?
Mr. Chrétien: in our view, it would not.
David Crombie, Svend Robinson, Fred Jordan (Senior Counsel, Public Law, Department of Justice), p. 93
Mr. Crombie: Thank you very much, Mr. Chairman.
Much of what I wanted to say, Senator Roblin has already said.
But I have one question I would like to ask. It deals with the resolution itself. I wonder if any member of the New Democratic Party in response to the resolution, could indicate what relationship they see between the resolution and the opportunity for mitigation under Clause 15(2).
It is that part of the Charter dealing with affirmative action programs. It indicates that under Clause 16(1), equality before the law and equal protection, that clause does not preclude any law, program or activity that has as its objective the amelioration of conditions of disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.
I recognize it does not include man made disaster.
Since you are using the word “aboriginal”, it seems to me that it is possible at any rate, that that could be found under “race”, but I am not sure.
Mr. Robinson: Mr. Chairman, if I may, I think I understand Mr. Crombie’s question. It would appear that since Subclause 15(2) relates back to Clause 15(1) which, in turn, deals with the question of equality before the law and equal protection and equal benefit of the law, that in essence, Subclause 15(2) is an affirmative action plan to ensure that any programs which are conducted in an attempt to achieve the objectives in Clause 15(1) are not defeated by what would appear to be the absolute proscription in Clause 15(1).
However, there is not over-riding clause in Clause 15(1) as it now stands, so that the mobility rights clause as we read it, would still apply, and by virtue of that there is still a concern that by applying mobility rights in their very broad wording as stated in Clause 6, that there could be a real threat to the Inuit people.
Mr. Crombie: Thank you very much.
I wonder if I could ask one of the law officers of the Crown, Mr. Chairman, whether they see, as Mr., Robinson has indicated, that Clause 15(2) relates somewhat narrowly to the absolute proscription of Clause 15(1) and therefore, we would have Clause 6 over-riding Clause 15.
In short, Clause 15 offers affirmative action programs. They are concerned with affirmative action programs.
The argument is that they need this resolution because Clause 15(2) would not apply.
Mr. Jordan: Mr. Chairman, if I can answer Mr. Crombie’s
question, we read Clause 6 as being subject to Clause 15(2). In other words, Clause 15(2) talks about any law which creates an inequality on the various grounds or the non-specified grounds but certainly the specified ones are raised in this particular situation. We feel in talking of programs, activities or laws that allow for affirmative action programs, we are talking precisely about the kind of thing that is addressed in the mobility rights where you want to create special benefits for those who have been disadvantaged on the basis of one of the grounds specified in Clause 15(1), so therefore I would say that Clause 6 will be read subject to Clause 15(2).
Now, with regard to the environmental consideration that you raised, obviously that is another consideration but in terms of a program or activity, job creation activity where you want to give special preference to persons falling under the categories of Clause 15 (2), that would be covered.
I do not know whether that answers your question.
January 28, 1981, Eymard Corbin, 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. 47, p. 8 (click HERE)
Mr. Corbin moved, —That the heading preceding Clause 15 and subclause 15(1) of the proposed Constitution Act, 1980 be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age.”
Mr. Robinson (Burnaby) moved, —That the proposed amendment to subclause 15(1) of the proposed Constitution Act, 1980 be amended by
(a) striking out everything immediately following the words “Every individual is equal” and substituting the following:
“in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without
unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.”;
(b) adding to subclause 15(1) the following: “physical or mental disability,”
(c) adding to subclause 15(1) the following: “marital status,”;
(d) adding to subclause 15(1) the following: “sexual orientation,”;
(e) adding to subclause 15(1) the following: “political belief,”;
(f) adding to subclause 15(1) the following: “lack of means.”; and
(g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.
January 30, 1981, Lorne Nystrom, Coline Campbell, Jim Hawkes, Senator Tremblay, Fred Jordan (Senior Counsel, Public Law, Department of Justice), Jean Chrétien, & David Crombie, 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. 49, p. 45 (click HERE)
Mr. Nystrom: […] The reason for this, Mr. Chairman, very, very briefly, is that we feel that instead of waiting for three years before Clause 15 comes into effect after the constitution act of course becomes law, that all things that are referred to in section 16 should take effect immediately upon the proclamation of course of the resolution.
The only exception to that would be age and physical and mental disability. The reason for that, Mr. Chairman, is that these are recent additions and they may cause a little bit of concern to the provinces in terms of making sure some of the provincial law, provincial acts, are in accordance with what is in the charter of rights and we think that we should give a year for the provinces to do that.
For the other things that are mentioned in Section 15 of the resolution, they are all part of the covenant, they are all part of what is guiding the national government and they are all part of what guides the provinces of this country; so we believe that they do not need three years for those things. We believe they do not even need a year for those things, but when the new constitution takes effect that they then should be able to make sure that their own provincial laws coincide with the wishes of the Charter of rights.
Because of the recent additions of age and mental and physical disabilities clauses to the charter we feel that we should give them one year. There is no need to elaborate, Mr. Chairman, I think it is pretty well straightforward.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Madame Campbell, do you have a question?
Miss Campbell: I have a question on the amendment to Mr. Nystrom. Why did you exclude sex in that?
Mr. Nystrom: Why did we exclude sex in that? Because we believe that it would not be a major problem for the provinces, that the provincial laws could coincide quite easily with the intents and the wishes of the Charter of Rights, that they have enough notice, that there would not be any complications there.
Miss Campbell: Sex, under this, Clause 15(1) has to wait three years to come into force. You are excluding, I take it from your amendment, age and physical and mental disability and you are saying that this should be enforced in a year.
Mr. Nystrom: Yes, we do not refer to the other things in Clause 15. We are not referring to race, national or ethnic origin, colour and sex, but our indications are that there could be some problems in some of the provinces with age. You have different age requirements in different provinces. It may take a while—all kinds of social policies. I am thinking of very simple things like the minimum drinking age, drivers licences, all kinds of things where the age requirement is different from province to province.
We would like to see Clause 15, equality of rights, take effect immediately but if there are legitimate problems in the provinces, and what we get is that there may be with age, we give them a year to make sure that they have a chance in the legislature to have their laws coincide with the intent of the charter.
Miss Campbell: I just have one more question now on the amendment. I do not accept your response on the sex. We have to wait three years and the provinces and everybody has said it should be there right away.
If you go to Section 29, you have to wait three years for section 15 and you are asking us to only have to wait one year. Is that what you are asking?
Mr. Nystrom: No, no, I am sorry Miss Campbell misunderstands this. Everything but age and physical and mental disability would take effect immediately upon proclamation of the constitution act of Canada. In other words it takes effect immediately.
Miss Campbell: And the other would have one year.
Mr. Nystrom: Have one year. The reason for that is we have had all kinds of indications from the provinces that there might be some problems in terms of tailoring their acts and their legislation to the intent of the charter. —I do not think that is necessarily sex.
Miss Campbell: You do not want to wait three years.
Mr. Nystrom: We do not want to wait three years for anything except those two items.
Miss Campbell: And that is for one year.
Mr. Nystrom: And that is for one year.
The Joint Chairman (Mr. Joyal): Thank you Miss Campbell.
Mr. Hawkes: followed by Honourable David Crombie and Senator Tremblay.
Senator Tremblay: I withdraw because I think l got the answer. it was a question of clarification.
The Joint Chairman (Mr. Joyal): Merci, Senator Tremblay. Mr. Hawkes.
Mr. Hawkes: A couple of, l hope, quick questions to the Minister. One of the groups that appeared before us was the insurance industry. Age and sex are two of the discriminants that are used in setting rate policy and benefit policy. They asked us to consider the impact of the Charter on their industry. I am wondering if the Minister could give us some indication of the advice he is getting, of the impact of Clause 15 on that industry.
The Joint Chairman (Mr. Joyal): Mr. Jordan.
Mr. Jordan: Mr. Chairman, Mr. Hawkes, I think the response is basically this, that the insurance industry in setting the premium rates for insurance or for pensions and so on are not doing that pursuant to laws which tell them that they must do it that way. They are engaged in making private contracts between themselves and people who are seeking insurance or pension coverage.
Our Charter does not, as I think we discussed yesterday, address itself to discrimination in what one might call the private sector, so it would be only to the extent that there are laws on the books such as the federal pension laws which deal with age or sex or one of those bases, actuarial tables, as a means of establishing different rates where one would have to examine them to see if that is a reasonable or demonstrably justifiable basis of discrimination.
Mr. Hawkes: Could the Minister of Justice indicate whether those things such as pensions and family allowance have been examined in light of the Charter. Do we need a period of time? The NDP is proposing that for instance, the instant this Charter is passed that sex is a prohibited grounds of discrimination. Will that affect the family allowance system or any aspect of our pension system and have you done a thorough investigation to give us some assurance of what is going to happen there?
Mr. Chrétien: We will have to review all our legislation as well. We cannot accept this amendment because the standards that we are setting here will force us to review a lot of our legislation and regulations and so on. And it is a matter of pure practicality. Parliament is operating and it will take a long time and it is a very difficult task. In fact, when Premier Blakeney came in front of this Committee one of his complaints, his testimony on page 16, was that three years was not enough and, you know, to get the provinces’ approval it was going to take a hell of a long time, with the complexities of all of our laws and the complexities of all of the laws of all the
other legislatures we felt that it was reasonable to give three years; but for us we do think that we will be, even if we do not have the time to pass the legislation to amend our own legislation, we are morally bound by this commitment whenever we will be faced with the problem we will apply that standard. But sometimes it cannot be done in changing—you cannot change legislation instantly.
How many bills have we passed so far since October, very, very few. This will imply a lot of legislation work, so my staff advises me that the next three years will be a fantastic load for us, but when we are in the process of our legislation and so on, we will implement all those principles in our administration. But when it will be calling for changes in legislation, we have to wait for the legislative time, so this is that practical problem.
We say that the principles that are adopted in this Charter will bind us but we need the time to change the legislation.
Mr. Hawkes: Could I just summarize then . . .
The Joint Chairman (Mr. Joyal): Your last question, Mr. Hawkes.
Mr. Hawkes: The Minister is asking us to vote against the amendment because the government, once this Charter is passed, will begin looking at current legislation to see what needs to be changed. You are not going to do it before; you are going to do it after; and you are telling us you are going to need three years to straighten out the world and that is what you want us to vote for, the retention of your three years, and not go along with the NDP.
Mr. Chrétien: That is exactly what I am asking you to do because l do think, you know, you say we cannot give you the enumeration of all the bills and the regulations and so on that might be affected. Yes, we cannot. But what we are voting is. we are voting for a principle, for a right, and there will be consequences, and we try to anticipate as many of them and we have been debating that for weeks and weeks, but now we will have la tâche monastique, a review of every aspect of every legislation, and that will take a lot of discussions and drafting problems and this and that.
So, it is very easy to say like that, but we cannot do that. If we were to have an agreement that it will pass automatically without debate, any amendments that have to be done, I do not know of any—I do not expect the NDP or—perhaps the NDP will accept that, Mr. Robinson is not here, but some like to talk.
Mr. Nystrom: I have noticed that, Mr. Minister.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. The honourable David Crombie.
Mr. Crombie: I had a question to the Minister but I think he has answered it, Mr. Chairman.
I would simply like to say that everyone would like to have the implementation as soon as possible, that is the burden of the amendment from Mr. Nystrom, but I think anyone who knows the problems of implementation would recognize that the time period requested by the government is required.
We will be opposing the amendment from the New Democratic Party and supporting the government. Go home and light a few candles.
The Joint Chairman (Mr. Joyal): Honourable Senator Tremblay.
Senator Tremblay: I would simply like to say along the remarks you made earlier that I am in total agreement with my colleague Mr. Crombie. The three years required to put things in order appear to me to be a minimum. I am against the amendment and eventually for the main article for another reason, because if it affects the provincial jurisdiction, it would appear more and more likely that effectively the charter of rights will not be sent to London but rather to the provinces as soon as it is out of Parliament, judging by the news we are receiving.
The Joint Chairman (Mr. Joyal): Thank you Senator Tremblay.
Mr. Nystrom, would you like to conclude on the proposed amendment?
Mr. Nystrom: Just in closing, Mr. Chairman, I have a hunch I am on the losing side. It is a good thing I do not need a seconder.
Just two questions to the Minister, maybe to your officials, not to the Minister. Do you have any idea of how many legislative changes might be needed in Clause 15? Have you any enumeration of how many we would need?
My second question, by the way, just so you know as well, if indeed that does cause you problems I can understand, but are there some things in Clause 15 that we could implement immediately? Clause 15, of course, does not allow you to discriminate on the basis of race. Are there any problems there? National or ethnic origin, colour?
Mr. Chrétien: We have the question of the Indian Act, and the question of the Indian Act where you know, the woman of Indian origin marrying a white man and losing her Indian status.
We have been talking with the Indians on that since 1968 when I was the first Minister to resolve it and I am told that there are only a couple of reserves that have accepted so far.
Mr. Nystrom: What about national or ethnic origin, or colour or religion. Some people have suggested that sex may be a problem because of different laws and so on. What about some of the others?
Mr. Jordan: I think in each one of them one could pick out specific things that in our discussions with the provinces, and again I think it is important to emphasize that their human rights codes are addressed at the moment basically to non-discrimination in the private sector. Their concern is that they have a lot of laws, quite apart from non-discrimination as dealt with in the human rights codes, that could be in trouble. They also recognize, and I think this is particularly important, that their human rights codes and ours are going to have to be
reviewed because we now allow an awful lot of exceptions with regard to, you know, in private accommodation, for example, most of the codes say in single units dwellings or in less than four units you can discriminate on the basis of race, colour, sex, you name it.
So those very basic laws. the human rights codes themselves are going to have to be reassessed very closely, do the pension exceptions, do the insurance exceptions as they apply to sex or age meet the new test that they must be justifiable. I think the problem is a very real one.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. I see that honourable members are ready for the vote.
The Joint Chairman (Mr. Joyal): I would like to call the vote on Clause 29. Shall Clause 29 carry?
Miss Campbell: No, Mr. Chairman. I would like to ask a few questions on Clause 29.
The Joint Chairman (Mr. Joyal): Madam Campbell
Miss Campbell: I am very interested in why Clause 15, the clause on sex, cannot come into force right away. This was one of the reasons why I truly supported the Human Rights Commission when they brought in their preferred Clause I where every man and woman is equal in Canada before their Charter, and to wait three years to have that equality clearly enunciated is very offensive to me; so perhaps you would like to tell me why, at the federal level we have to wait three years to have equality. I thought it was in existence rather than just a moral obligation at the federal level, prior to this Charter. I thought we had equal status at the federal level.
I can understand that maybe there are difficulties at the provincial level.
So my two questions are, what is it that as of today we are not treated equally under the federal legislation and why do we have to give the federal government three years to come into play; and secondly, what needs still have to be looked at federally for men and women to be treated equally at the federal level?
Mr. Chrétien: You know, I think that we said that the equality exists and it is recognized at the time in the Canadian Bill of Rights and it is reaffirmed here in different wording that there were requests and it will apply, but I just gave you one example of an obvious discrimination between men and women, the Indian Act, and this, you know we made a commitment since 1969 to the Indians that we would not change the Indian Act without their approval.
We started to talk about this problem and I remember Senator Casgrain coming to see me on that and so on, and we negotiated with them for twelve years. Now we say that is the end of the road. We have to pass an act because it is still a
legislation and you are asking for an example, that is one good example, we will have to amend the Indian Act.
Miss Campbell: in that particular example, I do not go along with you, because my understanding is that the federal government under the status of women on reservations is waiting specifically for bands to come to the federal government asking them for the changes because of the Indian Act.
Let me finish, because they are going to cut me off on my time, and you can answer that, but I would think that under this Charter that the Indian Act at present might be demonstrably justifiable under all circumstances, and that goes to race as well as the Indian Act and the status of women, but I do not see that we have to wait three years federally for this section to be implemented because I have been under the assumption that all directions to federal departments had been equal status.
I would like to know another department, perhaps, where it is not being implemented. I feel very strongly on this because I’ve always felt that this Charter should, as of the passing of it, recognize everyone in and women at least federally and I would like to know if you can give me that justification that federally all men and women are supposedly equal, aside from the Indian Act.
Mr. Chrétien: My answer is yes.
Miss Campbell: Why do we need three years federally?
Mr. Chrétien: Because, you gave me one example. We need three years for the Indian Act.
Miss Campbell: No, they can do it today if the bands came.
Mr. Chrétien: We have to amend the Indian Act and that is clear. It is there. it is on the books now, and we are not abrogating any law with the Charter.
The Joint Chairman (Mr. Joyal): Thank you, Miss Campbell.
Mr. Nystrom: I just want to say a few words in support of what Coline Campbell has said. Coline said that she does not see why we have to wait three years and that, Mr. Chairman, is the position of our caucus. We support what Coline has said. We don’t see why we have to wait three years. Accordingly, I will be opposing Clause 29 and l would just like to maybe ask the Minister’s officials whether or not they could quickly reconsider some of the things there.
Perhaps we should wait three years for two or three of them, but maybe some of this should go into effect within one year.
Perhaps there is a compromise.
I just think that is being a little bit too hesitant in terms of applying what is in my opinion one of the most important parts of the Charter, and that is the obligation not to discriminate on the basis of sex, age, disability, race, colour, national or ethnic origin and so on.
For those reasons, I would oppose it and suggest that we take a second look at it and make sure that this part of the Charter is applicable sooner than three years. I am sure that this time I will have at least one supporter in Miss Campbell when I vote.
March 4, 1981, Pauline Jewett, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess, p. 7897 (click HERE)
Miss Pauline Jewett (New Westminster-Coquitlam): Mr. Speaker, like others, I am very proud to be taking part in this debate. I have felt for a very long time, in fact pretty well all my life, that one of the most important gaps in the Canadian Constitution, the British North America Act, has been the lack of a charter of human rights and freedoms binding on both federal and provincial legislatures. Therefore, when the constitutional proposals were introduced last fall, it was with particular pleasure that I noted there would be such a charter in this proposal.
It was, however, very discouraging when reading the fine print of the charter to discover how hastily conceived it had been and to what a large extent it had neglected the real needs of many Canadians. Indeed, in my speech in the House of Commons on October 23, I pointed out in particular that the charter, whatever its intent, did not guarantee women’s human right to equality. It had used the very same phrases, such as equality before the law, that had been used in both common and civil law traditions and in the Diefenbaker Bill of Rights, which had been interpreted to mean equality in the administration of the law but not equality in the law itself and the very substance of the law. There were other deficiencies in the original proposals. That one, however, was so enormous that no woman in the country, or indeed any other group which had not hitherto been equal, could feel equality was being guaranteed.
A number of valuable clarifications and strengthenings were proposed by the ad hoe conference on Canadian women and the Constitution, about which hon. members have heard a great deal. There was a tremendously successful meeting in Ottawa the weekend of February 14 attended by over 1,000 women. I will not go through all the groups in Canada that have endorsed the recommendations of that conference, but once again there are literally dozens and dozens of them. This reflects the keen interest and participation in the creation of this charter of Canadian women.
I hope all hon. members will read very carefully the further suggestions made by the ad hoc conference. These are all now available to all hon. members. I hope hon. members will look particularly at three of the suggestions because the women themselves would like to see them highlighted in the charter.
The first suggestion is that there be a general statement, either in Section l or perhaps in Section 25, that the rights and freedoms set out in this charter be guaranteed to men and women equally. This should be an overriding statement, making it clear, in case there is any doubt in Section 15 or anywhere else, that the rights apply fully, completely and equally to women and men alike. This is important for all women but, perhaps I should say, particularly important for native women. It is something on which I think there is agreement on all sides. I know it is one of two amendments we proposed in the constitutional committee which the Conservatives were willing to support.
I am therefore very hopeful that if the Conservatives do not propose it as an amendment, or if we do not get the opportunity to propose it as an amendment, the Minister of Justice will bring it in.
Some hon. Members: Hear, hear!
Miss Jewett: The two others I would like to mention were not supported by either of the other two parties when the New Democrats introduced them in the committee. However, I think several members on the government side were willing at any rate to look at them very seriously. One is the use throughout the charter of the word “person” rather than “any individual”, “anyone” or any of the other words being used. The word “person” should be used throughout the charter.
The other one has to do with Section 15(2), the affirmative action section of the equal rights provisions. The suggestion is that affirmative action programs which are to be allowed—indeed, encouraged—should relate to disadvantaged groups. It is not necessary to include individuals. In fact, it might be dangerous in some ways if we did.
The whole purpose of Section 15(2) is to ensure that the equality rights set out in Section 15(1) do not prevent any law, program or activity which has as its object the amelioration of conditions of disadvantaged groups. However, unfortunately it says “disadvantaged individuals or groups” and thereby makes it possible that a single individual, as happened in the famous Bakke case in the United States, could get some advantage that the group of which he was a member already had in abundance, and thereby prevent an individual in another group from being able to be advantaged by an affirmative action program. One has to look at the condition and situation of a group as a whole, and if a group as a whole is advantaged then the fact that a single member of that group is not should not give him or her something special. When one looks at the group as a whole and discovers it is disadvantaged, then it is the group as a whole for whom the affirmative action program should be undertaken.
I stress this because the women I have talked with and with whom other Members of Parliament have talked as well—and there are many from all over Canada—feel that to ensure that the intent of the charter is carried out so far as women are concerned and, indeed, other disadvantaged groups are concerned, it is vitally important to make this deletion from Section 15(2).
A moment ago I mentioned that the New Democratic Party had during the course of the committee actually introduced all but one of the amendments which are now being proposed by the ad hoc committee on women and the Constitution, and we would be more than happy to introduce them all again, but this may be procedurally extremely difficult to do. If it is, I can only urge the government, and specifically the Minister of Justice—I am afraid I have given up on the minister responsible for the status of women—
Some hon. Members: Hear, hear!
Miss Jewett: —with all the power at my command to seriously consider highlighting those three amendments I have mentioned and to look seriously at the others as well.
I am somewhat comforted because hon. members will remember that on February 20 in the House I asked the Minister of Justice about this possibility. He said, “It is not possible to have a perfect charter.” These are the points of the women. Then he said, “If there is a possibility of more improvements, we will do our best to study all aspects of them”. On an earlier day, on February 16, the Prime Minister (Mr. Trudeau) said that the additions, clarifications and further amendments are “probably very sensitive and worth-while additions.” I say to the government: do not wait until the Tories support these amendments. I do not think they are going to do so, except for the one I mentioned first. They are paying lip service to them. Quite honestly, I have found no evidence that they are going to support them, let alone introduce them, although I encourage them to do so and I hope they will.
Unlike the people of Canada who have spoken, there are many parliamentarians and members of provincial legislatures who think we should wait until we have the Constitution back home with an amending formula before we start working on a charter of fundamental rights and freedoms. I become very upset when I realize that what these proponents are asking for
is nothing. We will never, or not for 100 years perhaps, get a charter protecting our fundamental rights and freedoms if we wait until later. Women of Canada have said to me and to many others that if this is thrown into the battleground of federal-provincial conferences, we do not believe the 11 first ministers are going to give us our equality; we have no faith in it at all.
For example, if we look at what has happened in the United States we find that women there have been trying to get an equal rights amendment since 1924 and have not succeeded yet. Nor do I think that a constituent assembly is likely. I would like to see it, but I think it is unlikely it will come about. It is certainly not part of the Canadian historic tradition.
November 2-5, 1981, Premier R. Hatfield, Federal-Provincial Conference of First Ministers on the Constitution, Text of Opening Remarks by Premier R. Hatfield (click HERE)
Hon. Richard Hatfield: I have, as I said, a proposal to make with regard to the Charter of Rights. I will refer to it now. As per Conference Document #800-15/004, New Brunswick proposes that the resolution be altered in the following respects: only certain provisions of the charter would come into force immediately. These include: Guarantee of Right and Freedoms, Fundamental Freedoms, Democratic Rights, Mobility Rights, Official Languages of Canada and New Brunswick, Minority Language Educational Rights and General Rights that are included in Sections 25, 26, 29, 30, and 31 of the proposed resolution. The remaining provisions of the Charter of Rights would be enacted, but would not come into force for three years. These include: rights which a fair number of Premiers and ministers and people in Canada have suggested more time is needed to consider them and to improve them. These include: legal rights, equality rights, enforcement and general matters that are included in Sections 27 and 28 of the proposed resolution.
This concept of deferred application for three years presently exists in the Charter, but applies only to Section 15.
During this three-year period, these deferred provisions would be placed on the agenda of the proposed Constitutional Conferences as to be provided for in the resolution. At the end of the three-year period, six provinces acting together could prevent the coming into force in Canada as a whole, any provision by depositing resolutions of their legislative assembles with the Clerk of the Privy Council, opposing the coming into force of the provision. Such a resolution could be adopted at any time after two years had elapsed from the coming into force of the other provisions of the Act. The two-year restriction is designed to ensure at least two years of open discussion prior to a commitment being made by a legislative assembly, during which a consensus on the scope of the Charter might be reached and an amendment secured, if necessary (end of quote from /004).
November 6, 1981, Pauline Jewett & Prime Minister P.E. Trudeau, House of Commons Debates, “Provision Respecting Women’s Rights”, 32nd Parl, 1st Sess, p. 12594 (click HERE)
Miss Pauline Jewett (New Westminster-Coquitlam): Mr. Speaker, in the absence of the minister responsible for the status of women my question is for the Prime Minister. As the Prime Minister knows, Clause 28 of the constitutional resolution is a paramountcy clause outside the charter. I remind him that Clause 28 is the one saying
Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
What I would like to ask the Prime Minister is if he can tell the House whether Clause 28 will continue to have paramountcy. That is, will it override any attempts made to deny equality to women?
Right Hon. P. E. Trudeau (Prime Minister): Mr. Speaker, I can only answer that my impression is that the clause would continue. I have not been involved in the drafting which went on between provincial and federal officials yesterday afternoon and, I believe, during the night as well.
I cannot answer firmly but I want to tell the hon. member—and this applies also to the Standing Order 43 motion put by the member for Malahat-Cowichan-The Islands—is that we took the draft presented to us by the seven premiers. They had made a lot of deletions from our original draft which is before the House. One of those deletions was precisely the clause concerning aboriginal rights. They are the ones who deleted it. If there was any deletion of the clause that concerns the hon. member—
An hon. Member: You agreed to it.
Mr. Trudeau: I understand. I agreed to a lot of things that were not my first choice, yesterday. That must be understood. I was looking for a consensus, and I got a consensus.
Some hon. Members: Hear, hear!
Mr. Trudeau: When the member is finished shaking his fist he can realize that I sought a consensus on the basis of a series of deletions to our charter, the best charter in the world which I believe some of the members over there supported. I accepted a consensus put to me by seven premiers. There were some
deletions, and aboriginal rights was one of them. Maybe the other clause was another. I am not sure. I will have to check that, and that is why I say I will see what was done on the drafting overnight.
I cannot conceive how the member from Malahat-Cowichan- The Islands could come out with an untruth as enormous as the one he did when he said that Saskatchewan was supporting aboriginal rights and somehow we were not. It is Saskatchewan and the other six that put to us a draft without aboriginal rights. It is in the discussion that ensued that I said I found that difficult to accept. but if they were facing me with this draft could we at least have a federal-provincial conference agreed where we would try to see what the native people agreed to among themselves, assuming they can agree among themselves, and that is far from certain, but I said let us at least give them a chance to meet with us. That is how it happened.
Some hon. Members: Hear, hear!
November 9, 1981, Joe Clark, Prime Minister P.E. Trudeau, Margaret Mitchell, & Bob Rae, House of Commons Debates, “Equality of the Sexes”, 32nd Parl, 1st Sess, p. 12634 (click HERE)
Right Hon. Joe Clark (Leader of the Opposition): Madam Speaker, I suppose that so long as we have an implicit undertaking from the Prime Minister that he will respect the spirit sought by Mr. Ryan of an honest attempt to include the province of Quebec in this accord, we will have to wait to see the resolution which comes forward.
However, let me ask a specific supplementary question of the Prime Minister in relation to the resolution that is being drafted. Would the Prime Minister confirm that in the original accord, signed by himself and the nine premiers on Thursday, the opt-out or override provisions do not apply to the guarantee of equality of male and female persons which, the Prime Minister will recall, was set down deliberately in a separate section, Section 28, of the original resolution?
Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, I think this is the question asked by the hon. lady in the New Democratic Party the other day. I had a chance to look this up since then, as I said I would—
Mrs. Mitchell: Hon. lady?
Mr. Trudeau: If some can say “hon. gentleman”, is it prohibited to say “hon. lady”?
Mrs. Mitchell: Hon. member.
Mr. Trudeau: Madam Speaker, would you like me to call her something else?
Some hon. Members: Hear, hear!
Mr. Trudeau: My understanding is that in the work done by the federal and provincial officials the “notwithstanding” clause would indeed apply to that particular section.
Mr. Rae: It shouldn’t.
Mr. Trudeau: The hon. member says it would not.
Mr. Rae: I am saying it shouldn’t.
Mr. Trudeau: Oh, well, we know that the Leader of the Opposition has always argued that we should have a charter made in Canada by Canadians. Now that we will have our own Constitution, now will be his chance to have a charter
made in Canada by Canadians, and over the next years he will be able to fight to put back in the charter what we had in the original charter which his party combated tooth and nail for the past year.
Some hon. Members: Hear, hear!
Mr. Trudeau: The Leader of the Opposition asks me if we will make an honest attempt to seek some kind of compromise. We have been trying since Thursday. We have indicated to the Parti Québécois, the Quebec government, that we are willing to hear some words from them particularly on the mobility clause, as we got from Premier Peckford, which would answer the problem the Parti Québécois has with the charter as it is now presently conceived. We have not heard from them.
I just want to reiterate to the Leader of the Opposition that we have a duty to protect minorities, and we are trying to find a way to convince the government of Quebec that it should share in that duty of protecting minorities. I recall for the Leader of the Opposition that I believe it was less than a couple of months ago that he was speaking in Montreal and undertook to communicate with the Premier of Quebec to make sure that the government of Quebec would see its way clear in some way to protect the English-speaking minorities in Quebec. I wonder if he has since then communicated with the premier and if it would not be useful now for him to communicate with the Premier of Quebec to indicate his concern for these minorities, as he said he would a couple of months ago.
Some hon. Members: Hear, hear!
Mr. Clark: Madam Speaker, I find it rather strange that the Prime Minister should be putting questions to me, but I will not follow his practice; I will answer the question. The answer to the question is yes, I have.
Some hon. Members: Hear, hear!
“Details of Accord,” Joe Clark, p. 12635
Mr. Clark: Madam Speaker, there is a great deal of heckling from the Liberal side, perhaps to stop questions about the equality of male and female persons. However, let me come back to the specific communique of the accord tabled in the House of Commons by the Prime Minister which says that there was agreement on the entrenchment of the full charter of rights and freedoms now before Parliament, with the following changes:
(b) A “notwithstanding” clause covering sections dealing with Fundamental Freedoms, Legal Rights and Equality Rights.
“Oral Questions,” Joe Clark, P.E. Trudeau, & Flora Macdonald, p. 12635
Mr. Clark: The Prime Minister will recall that there was a deliberate effort made, when the original resolution was prepared, to put Section 28 in a separate section. That separate Section 28 is not referred to in the list of exceptions I have just quoted.
Is the Prime Minister telling us that the Government of Canada is now changing the accord which was signed by the Premiers? Are we going to have a resolution which has an opting-out or override clause applied to Section 28, when the accord did not have an opting-out or override clause applying to Section 28?
Right Hon. P. E. Trudeau (Prime Minister): No, Madam Speaker, I am not saying that. The Government of Canada did not want to take anything out of the resolution which was before the House; nothing. We wish the Leader of the Opposition had supported it when it was here the first time, but I did say that the officials of the federal and provincial governments did meet on Thursday and Friday, and my understanding of that meeting is that this particular section would be subject to the “notwithstanding” clause.
Mr. Clark: That changes the accord.
Mr. Trudeau: Let me make it clear that everything in the charter now we would want to keep. Anything taken out is taken out because of the accord.
Mr. Clark: No.
Mr. Trudeau: The Leader of the Opposition says “No”. I wish he would get hold of the nine premiers and get them to interpret the accord.
I can show a piece of paper too.
Miss MacDonald: Shame on you.
Mr. Trudeau: The lady from Kingston says “Shame”. She did not support the charter when it was here.
Some hon. Members: Right on!
Mr. Trudeau: She did not support it when it gave absolute equality to the sexes. Hon. members opposite did not support it when it gave recognition to aboriginal rights.
As a result of the accord last week we have had to take certain things out, not because we wanted to take them out but because we were asked to take them out as the price of an agreement. I will not be saddled now with any weakness of the charter, which the party opposite refused to support and is now crying about because it does not appear in its entirety. They wanted a charter made in Canada. Let them sit down to work now and start making a charter in Canada. That means agreeing with the provinces that they should protect these people.
Some hon. Members: Hear, hear!
November 16, 1981, Edward Broadbent, Judy Erola, Pauline Jewett, House of Commons Debates, “The Constitution” 32nd Parl, 1st Sess, p. 12777 (click HERE)
Recognition of Women’s Rights
Mr. Edward Broadbent (Oshawa): Madam Speaker, my question is addressed to the minister responsible for the status of women. The minister knows that following certain answers given by the Prime Minister with respect to Clause 28 in the old constitutional resolution, the precise meaning and significance of that clause are unclear. She also knows that there have been discussions taking place, as I understand it, between the federal and provincial officials in recent days. I wonder if she is now in a position to outline to the House the precise meaning of that clause.
Hon. Judy Erola (Minister of State (Mines)): Madam Speaker, I will be happy to answer the question. The precise meaning of the clause as we see it, is that Section 15, where the nonobstante applies, refers to the specific definition of sexual discrimination for a very specific act. In Clause 28 the broad principle is stated, one in which the women of Canada are very much interested and are very positive about. They wish this to remain within the charter, of course. I should like Oral Questions to advise hon. members that we are optimistic at this stage and hope that Clause 28 in the general section will remain intact. We may know by the end of the day.
Effect of United Nations Convention on Elimination of Discrimination
Miss Pauline Jewett (New Westminster-Coquitlam): Madam Speaker, my question is also for the minister responsible for the status of women. I am very pleased indeed, as I am sure all members of the House are, by the answer the minister has given that Clause 28, the equality clause, will remain intact, just as it is now.
If I may, I should like to congratulate the minister on opening her office to the representatives of millions of Canadian women who are extremely concerned that Clause 28 be kept intact.
Some hon. Members: Hear, hear!
Miss Jewett: We are very glad to join in the applause.
Article 2(a) of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women requires state parties to “undertake to embody the principle of equality of men and women in their national constitutions”. My first question was to have been whether the federal government still supports this convention and I take it the answer is yes. May I ask the minister whether it has been brought to the attention of the provinces that a serious violation of this convention would be brought about if Clause 28 were eliminated, overridden, or changed in any way?
Hon. Judy Erola (Minister of State (Mines)): Yes, Madam Speaker, that has been a very forceful part of the argument presented to the premiers.
November 18, 1981, Flora MacDonald, Prime Minister P.E. Trudeau, & Derek Blackburn, House of Commons Debates, “Recognition of Women’s Rights”, 32nd Parl, 1st Sess, p. 12890 (click HERE)
Hon. Flora MacDonald (Kingston and the Islands): Madam Speaker, I have a straightforward question that is directed to the Prime Minister, regarding the constitutional proposals. Will the Prime Minister confirm that ail of the provinces, except Saskatchewan, have now agreed to the inclusion intact of the equality clause, Section 28, as it was introduced to the House of Commons earlier this year with unanimous approval by all parties of this House?
Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, the negotiations on this particular subject have been going on for several days because it was a matter of clarifying what the premiers intended when they signed the accord. There has been, effectively, disagreement between them as to
what particular interpretation should be given to a particular section. I can only say that to this moment it has been impossible to get all nine premiers who signed the accord, on the same wavelength, and to agree to the same text.
Mr. Blackburn: You do not have to worry about Sterling Lyon any more.
Mr. Trudeau: Since we told the provinces that we would be tabling the resolution in its final form today, as a direct answer to the hon. lady’s question I must say that there is more than one province which disagrees with the complete restoration of the section as it was. Therefore, in the spirit of the accord, I think we will have to go with a modified version of the text that we had originally proposed, not only in the resolution which has been before the House for a year, but also in the drafting sessions. I do not think it is appropriate to point out any particular province. There has been a great deal of negotiations going on, but obviously there is some lack of unanimity among the provinces as to what was intended in the accord.
November 20, 1981, Hon. Flora MacDonald, Right Hon. P.E. Trudeau (Prime Minister), Erik Nielsen, David Crombie, House of Commons Debates, “Recognition of Women’s Rights”, 32nd Parl, 1st Sess, p. 12978 (click HERE)
Hon. Flora MacDonald (Kingston and the Islands): Madam Speaker, my question is directed to the Prime Minister. He will recall that a couple of days ago I asked him how many provinces have not yet given their consent to withdrawing the
override provision to the equality clause, Section 28. Following question period the Prime Minister will recall that he intimated informally to me across the floor of the House of Commons that there were two such provinces. Then he intimated that, if that number were reduced to one, he might consider reinstating the clause as it was in the original, but that he could not do so if it were two or more provinces.
Seeing that there seems to be only one province now which is withholding its approval, I ask the Prime Minister most sincerely whether he would, in concert with eight provinces, agree to reinstate Section 28 to give full equality to male and female persons as it was in the original resolution?
Some hon. Members: Hear, hear!
Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, the hon. lady should have terminated her question by saying, “as it was in the original resolution, which the Tories did not support”.
Some hon. Members: Hear, hear!
Mr. Nielsen: Not true.
Mr. Crombie: Be serious.
Madam Speaker: Order, please. There is very little time remaining in question period, and we would like to hear from a lot of questioners.
Mr. Trudeau: The hon. lady is asking me a hypothetical question because I do not know how many provinces will in the end support the amendments to restore the charter to its original form, the way it had been proposed. I do not know how many provinces, in the end, will support: maybe all, maybe not all.
I would say the same thing about aboriginal rights. Maybe all will support the restoration of aboriginal rights, and maybe they will not. However, the question remains hypothetical in the sense that I cannot say in advance what the courts would have defined as a consensus of the provinces. We know that too did not appear to be enough. We know that ten is not necessary. I do not know how many provinces we would need to go to London in order that we would have established the constitutionality in a conventional sense of the demarche. I suppose that could only be settled by the courts.
If the question does arise, we will have to make up our minds on this side of the House if “x” number of provinces is enough or not. I hope we will not have to ask ourselves that question because I am sure the house will let any changes to the accord made on Thursday, two weeks ago, be made with the consent of the provinces. I think that is important.
I fail to understand what the laughter is about on that side of the House. Maybe I could have a supplementary question and try to deal with the question.
“Oral Questions, Query Respecting Number of Non-Consenting Provinces”, Flora Macdonald, Prime Minister P.E. Trudeau, p. 12979
Hon. Flora MacDonald (Kingston and the Islands): Madam Speaker, I would like to put a supplementary question. The Prime Minister will remember, of course, that Section 28 was not in the proposals brought before the House a year ago this October, and presented by the Prime Minister.
Some hon. Members: Hear, hear!
Miss MacDonald: That section was added in April of this year with the consent and agreement of all parties of this House, because I think we all want to see that section carried out. Therefore, I really want to come back to the question that I posed to the Prime Minister and the information that I understood he conveyed to me the other day that, while two provinces would present some difficulty for him in undertaking to make any change to the clause as it now stands before the House, if that number were reduced to one he might consider it. I am asking him will he now consider that?
Right Hon. P. E. Trudeau (Prime Minister): Madam Speaker, the hon. member makes a point that Section 28 was not in the charter when it was first introduced. She is right, of course, and she is right that many other changes in the charter were made following the introduction into this House in October of last year. She should be reminded of the process which caused that to happen.
We had a pretty good charter in the month of June, 1980. The Minister of Justice attempted to get provinces on side. I now think the House realizes how hard that is on some aspects of the charter and aboriginal rights.
The Minister of Justice, in an attempt to get the provinces on side, watered down that charter in many aspects in the hope of getting a consensus in September of 1980.
We did not get the consensus. Therefore we decided to act with just the authority of Parliament. Since Parliament was going to act on its own, at least in so far as our party and most of the New Democratic Party was concerned, we could afford to improve the charter.
I remind the hon. member of what position she and her party took at that time.
November 20, 1981, Jean Chrétien, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess, p. 13043 (click HERE)
Mr. Chrétien: Professor Walter Tarnopolsky is a past-president of the Canadian Civil Liberties Association and an international expert on bills of rights. His view is that the override clause “is really not such a bad idea, and could have a great many advantages”. That quote is from The Globe and Mail, November 9, 1981.
It should be clear, in conclusion, that the compromise reached by the Prime Minister with the nine Premiers maintains the principle of a full, complete and effective constitutional Charter of Rights and Freedoms. It does not exclude rights which have previously been guaranteed. In fact, the charter has been improved because unforeseen situations will be able to be corrected without the need to seek constitutional amendment. For those who remain concerned about the override clause, let me remind them that it has been said that “The price of liberty is eternal vigilance.”. Pressure groups must remain vigilant and we are seeing such vigilance now from women who are arguing for the removal of the override clause in Section 28 and the aboriginal people who are fighting for the reinstatement of their rights. I will say more about that in a moment.
Jean Chrétien, p. 13046
Mr. Chrétien: Madam Speaker, finally, I must say, to you and to the other members of this House, that it is unfortunate that we did not obtain the agreement of the tenth province, the province of Quebec. I feel that the Premier of Quebec had a duty here to forget his party and to act as the representative of the province of Quebec. There are only three clauses that separate us. Considerable progress has been made on two of the clauses, and if misgivings still exist, we are prepared to discuss them. Considerable gains have been made in the last two days, both with respect to Section 28, which guarantees the equality of men and women in the Constitution, and in our present discussion on the entrenchment of aboriginal rights in the Constitution. In the days to come we could still find common ground for agreement, which would enable Quebec to join the rest of Canada on the day we give our country a new Constitution, the day when we shall achieve a new level of maturity in this country, when people will have equal rights and when we can be different while at the same time sharing the responsibilities and privileges of being Canadians.
Joe Clark, p. 13047
Mr. Clark: […] Our first amendment, which I will move later today, will reinstate, without qualification, the guarantee in Section 28 of the equality of male and female persons.
Some hon. Members: Hear, hear!
Mr. Clark: The House will not be surprised that my amendment in this case will be introduced by my good friend and colleague, the hon. member for Kingston and the Islands (Miss MacDonald). The present resolution will allow Parliament or a legislature to treat women as less equal than men, or men as less equal than women. We intend that the rights and freedoms set forth in all the provisions of the resolution will be guaranteed equally to male and female persons. I will elaborate on our reasons later.
Joe Clark & Monique Bégin, p. 13049
Mr. Clark: I indicated that the first amendment we wanted to introduce, the one which l will be introducing today, relates to the equality of male and female persons. I would like to speak about that for a moment. When representatives of the federal and provincial governments met, they agreed that certain rights set out in the Charter of Rights and Freedoms should be limited by Section 33 of the new resolution by the non obstante clause. In the accord which was tabled in this House of Commons by the Prime Minister on November 5, the non obstante clause did not apply to Section 28, which guaranteed the equality of male and female persons. I believe that is an uncontested version of what happened, both in the conference and afterward.
Indeed, what happened, to the best of our ability to reconstruct it, is that after the Prime Minister came to Parliament and the Premiers went home, the officials of both levels of government got together and decided to apply the non obstante clause to Section 28. The government, in this amendment and resolution, has unfortunately accepted the officials’ amendment and has not acted on the accord which was reached by 10 of the 11 first ministers when they met here in early November. As a consequence of the change brought to this matter by officials, Section 28 is subject to Section 33. A limit is placed upon the equality of male and female persons which was not explicitly intended to be so placed by the 11 first ministers of Canada when they met in conference in November in the capital of the country.
In recent days there has apparently been some dramatic shifting of opinion on the question. In one case, we learned that at least one Premier had not been informed of the exact nature of the work being undertaken by his officials and the position being ascribed to his government by his officials. My colleague, the hon. member for Kingston and the Islands (Miss MacDonald), brought that matter directly to the attention of the Premier of Nova Scotia. I should say, in passing, that the hon. member for Kingston and the Islands did so at her own initiative and that of her party and, without the benefit of advice from the government, brought that to the attention of the premier of the province of Nova Scotia. When he understood what was at issue, he immediately indicated his willingness to have Section 28 stand without limitation and expressed his willingness to associate himself, along with other Premiers and certainly along with his party, with the idea of the equality of treatment of male and female persons. Therefore, that changed.
We are not sure what is happening in the province of Saskatchewan. At last report, the New Democratic Premier of the province of Saskatchewan, that spokesman for rights in that party of rights, was proposing to trade rights for rights.
An hon. Member: Don’t go so low.
Mr. Clark: “Do not go so low,” someone suggests from the New Democratic benches. If those hon. members are interested in speaking for principle, let me suggest that they get up from the House, suffer the loss of hearing a few minutes of my speech, call Roy Romanow, call Allan Blakeney, and tell them to stop playing games with rights and to give us unanimous agreement so that male and female persons can be treated equally under the constitutional proposals.
Some hon. Members: Hear, hear!
Mr. Clark: I want to deal with the substance of what we are proposing. The substance of our amendment guarantees that men and women will have equal access to the rights and freedoms set out in the Charter of Rights and Freedoms proposed in this resolution. Some of those rights and freedoms will already be limited by the application of Section 33. However, where they exist they will exist absolutely equally for women and for men. That is the purpose of the amendment I am introducing, seconded by my colleague, the hon. member for Kingston and the Islands. That is an amendment which I hope will commend itself to this whole House, so that this whole House can go on record as supporting the guarantee of equal treatment of male and female persons in Canada.
Some hon. Members: Hear, hear!
Mr. Clark: Let me elaborate briefly for a moment. Two years ago, as prime minister, when statements were still made on motions, if Your Honour can remember that far back—
Some hon. Members: Oh, oh!
Mr. Clark: —I had the opportunity to make a statement on motions marking the fiftieth anniversary of the Person’s case in Canada. The Person’s case, as this House will recall, was a case brought by five courageous women who, I am pleased to say, came from my province of Alberta and believed that it was absolutely unacceptable that interpretations of the Supreme Court of Canada should prevent women from being interpreted as persons in a way which would not allow them to be appointed to the Senate. One might ask why they would ever want to be appointed there; but certainly, their case was that if anyone were to be appointed there, they should have as much right to be appointed as men. They raised the case, they fought the case and they won the case. From that point in the late 1920s and early 1930s, we achieved a very significant movement forward toward equality of status of male and female persons.
I make the point that while the symbolic battle was won with Senator Cairine Wilson being named to the Senate, we had only begun to approach the issue. The Senate was the symbol. The issue was inequality. The symbol has been repaired. The inequality persists.
I will not spend long on this point because too many of us, to our shame, know that if we have a daughter, as I do, she will not have the opportunity in this country to play hockey if she chooses to do so in the same way that a male child might have.
We know that women are denied equal rights to use the training they acquire, whether professional training—
Miss Bégin: They can play ringette.
An hon. Member: Why don’t you play hockey, Monique?
Mr. Clark: Yes, they can play ringette. That is right. They can play something else.
Some hon. Members: Oh, oh!
Mr. Clark: I do not want to get into partisan debates so I will not comment on my continuing surprise at the Minister of National Health and Welfare (Miss Bégin).
Some hon. Members: Oh, oh!
Some hon. Members: Hear, hear!
Mr. Clark: What I am going to say, I say also as someone who is occasionally guilty of the infraction myself. Nothing demonstrates the point I am trying to make more dramatically than matters about which this House jokes or titters most often. They usually relate in one way or another to the status of women. For instance, the dispute as to whether my colleague, the hon. member for Kingston and the Islands, should be called an hon. lady when I am called an hon. member. That sort of thing indicates that prejudice runs deep, even in this House where we are supposed to stand and fight against prejudice.
That, I believe, makes the case very clearly and very dramatically why, even though we have espoused the goal of equality, we need to take that step one point further. What must be put right into the Constitution of Canada is the guarantee that male and female persons will be treated equally in relation to the rights and freedoms of Canadians. That will be another step forward, as was the Person’s case some 50 years ago which guaranteed in daily practice, where wages were paid and people were hired, that female persons were to be treated equally with male persons.
Some hon. Members: Hear, hear!
Mr. Clark: At this point I would like to move a motion, and I will, continue my remarks after having done so. I move, seconded by the hon. member for Kingston and the Islands:
That the proposed Constitution Act 1981 be amended
(a) by striking out clause 28 and substituting the following:
(b) by striking out subclause 33(1). and substituting the following:
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
What that does is remove the non obstante clause from Section 28. It restores the guarantee of equality of male and female persons to the position enjoyed when the accord was tabled in this House of Commons by the Prime Minister of Canada after his meeting with the first ministers.
Edward Broadbent, p. 13054
Mr. Broadbent: The first of these contributions I want to mention—because I think it is very important, given the regional nature of Canada—was that as a result of early discussions, broad new powers were given to the provincial governments over the development, control and management of their resources.
The second was our writing and insistence upon the acceptance of Section 28 in the original resolution which gave paramountcy to the equality of men and women. That was a product of the New Democratic Party of Canada and was finally accepted, I am pleased to say, by all parties in this House.
Edward Broadbent, p. 13055
Mr. Broadbent: I want now to turn to two fundamental matters which must be of concern to all Canadians, namely equality of the sexes and the rights of Canada’s aboriginal peoples. Before doing so, I want to say that when completed in a just form, I would like this resolution, particularly the Charter of Rights and Freedoms, to hang on the wall of every classroom in every school in every region of Canada. I do not say this because I believe in propaganda. I say it because I believe constitutions are fundamentally about rights, rights are fundamentally about people and people from childhood on must be encouraged to acquire a deep understanding of their own liberties as well as an even deeper appreciation of the liberties of others.
Some hon. Members: Hear, hear!
Mr. Broadbent: Turning now to this document, I ask in all seriousness, would we want children anywhere in Canada to read a document which says, “Men and women are equal except when a group of politicians say they are not”? That is what is in this document. It is neither good for young boys nor for young girls.
In our culture at this time, this kind of symbolism can mean only one thing. It does not mean that males can be discriminated against as well as females. Everyone in this chamber and everyone in Canada knows that it means it is accept-
able to discriminate against women, against young women, against girls. We find that totally offensive in this year of 1931.
In changing the original resolution with this act, we have taken a step backward, reversing completely the progress we had made in recent years. The progress toward achieving greater equality for women has, to understate it, not been exactly exciting. However, we have made and have been making up until this document some changes. However, when we put into a constitutional document written in 1981 the principle of inequality, what are we doing? We are not simply pausing or stalling; we are turning things backwards, we are institutionalizing inequality, and we cannot accept that.
We must restore the original positive wording of Section 28. which ensures the paramountcy of the principle that men and women are equal. The Leader of the Opposition mentioned his intention of moving an amendment. We had the same proposal, so it would be totally redundant for us to do that. I simply indicate that the amendment will have our full support, if for no other reason than that in the original document we wrote it in the first place.
John Bosley, p. 13060
Mr. John Bosley (Don Valley West): There are several matters I want to raise in this debate. We are, however, approaching four o’clock and I would like to make sure that I put something on the record before I proceed to deal with what I think are absolutely vital questions in this debate, specifically the issues of equality of men and women, the issue of the protection of the treaty rights of our aboriginal people, and the amendments which my leader proposed earlier today.
We received a telex in which I believe the House will be interested because quite a bit of admirable discussion has taken place about attempting to persuade premiers to come on side with native rights and men’s and women’s rights. This telex came from the Premier of Ontario, the Hon. William G. Davis. It was addressed to the Right Hon. Joe Clark and to Duke Redbird, president, Ontario Métis and Non-Status Indian Association, Native Council of Canada offices, To those who want to know where Ontario stands, I can say it stands foursquare behind the entrenchment of the rights of the aboriginal peoples and for Section 28 unamended. I will quote for the record from the telex. It reads, in part:
Ontario remains committed to the accord signed on November 5. However, to the extent there is significant opportunity prior to the end of the debate in Ottawa to influence those who do not support the current provisions for women’s rights and the inclusion of aboriginal rights, we will be endeavouring to do so.
We do express our sincere regret that aboriginal rights were excluded from that agreement.
We remain committed to the principle of entrenching rights for both women and native peoples.
Let there be no mistake about where Ontario stands.
I propose to continue that argument when I am next allowed to rise, Mr. Speaker.
November 23, 1981, John Bosley, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess, p. 13112 (click HERE)
Madam Speaker: The right hon. member for Yellowhead, seconded by the hon. member for Kingston and the Islands, moves:
28. Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
(b) by striking out subclause 33(1), and substituting the following:
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Mr. John Bosley (Don Valley West): Mr. Speaker, when we broke off debate on Friday I had indicated that I was happy to read into the record a telex from the Premier of Ontario with regard to that province’s view of Section 28 and the protection in the charter for the treaty rights of our native people. It is amazing, sometimes, what happens over a weekend. In a way, I am rather happy to have had the break in the middle of my speech since I am equally proud to put into the record today what the attorney general of Ontario had to say over the weekend about Section 28. It has now been admitted by the attorney general of Ontario and the Premier of New Brunswick that the resolution before this House to make Section 28 subject to the override provisions was never discussed prior to the creation of the resolution and its introduction in this House. It was not on the table, and now that it is public I hope it will allow us to discuss it at length, as we proceed in this debate on that issue, precisely because of the importance that has been attached by members opposite, including the Prime Minister (Mr. Trudeau) and Minister of Justice (Mr. Chrétien), to the need to preserve the accord without amendment.
Aside from the fact that there are a number of amendments in the resolution that are, in fact, outside of what was discussed leading up to the November 5 accord, it is now becoming more clear that the amendment to Section 28, which is being used as a block by members opposite to the amendment which my leader has moved, was in fact also brought in after the accord was drawn. As this becomes more clear, I hope we will recognize the simple justice that returning to Section 28 will bring.
Before I continue my remarks which I started last week, I might also indicate my sadness, after listening to my Prime Minister—and I say that advisedly and only as a citizen— returning to the shotgun diplomacy style. I think most members of this House realize that in the middle of some very complex behind-the-scenes negotiations to try to bring everybody onside concerning the amendment to Section 28, as well as amendments to the rest of the charter which my leader has proposed, including what will become clearer—if it is not now public—about conversations with several people in the province of Quebec, that it is frustrating, using that word advisedly, to come back to this house in Ottawa to hear the Prime Minister indicate that as long as the amendment is decided on by tomorrow night, it is all right. That is another guillotine, Mr. Speaker.
At this point in the debate, it is worth reminding ourselves that it was this same Prime Minister who wished to impose this same guillotine and tried to impose it last year. It is the same Prime Minister who tries to impose this guillotine on these clauses who did not include these rights in the original document presented to the House of Commons. It is the same Prime Minister who fought the committee which tried to put these rights in. The Prime Minister is now arguing that these rights are not there because of the premiers whom he did not want to meet with in the first place.
It surely should be clear by now that the reasons for the amendments in the resolution relating to aboriginal rights, treaty rights and to women’s rights are that they were taken out, apparently, in the meetings. It takes two to agree. Therefore, all attempts to portray the Premiers as the villains I hope will be rejected by the general public, because it took the Prime Minister of Canada to agree to remove those rights in order for the accord to get to this House of Commons. Let us not forget that.
Mr. John Bosley (Don Valley West): […] Some have argued that federalism could not work, that more meetings last year would not help to resolve the impasse, and that we could not wait any longer and our nationhood demanded severe unilateral action. When our party undertook to fight such radical unilateralism, a fight initiated by a decision which took guts and courage and a commitment to principle by the leader of our party, a decision in keeping with the traditional Canadian way of doing things—and I hope more Canadians will come to see these qualities as the highest qualification for the highest office in this land—there were some, notably those who think the world can best be governed through a newspaper column rather than through the melee of politics, who thought we must either be kidding or that we were crazy, that we were suicidal or bent on self-destruction.
Time and the Supreme Court have shown the opposite. Time has shown that compromises can be found, Time has shown that consensus and agreement is possible if one wants it and is willing to work for it. Time, even since the first ministers’ meeting and the accord which resulted from it, has shown that even further agreement is possible. I am referring to the ongoing attempts to protect the equality of women and men from the override provisions of Section 33 and of the hard work toward that end by so many women and some men in the last few days.
Mr. John Bosley (Don Valley West): […] I mentioned earlier that it is critical that Section 28 apply without limitations—if hon. members will excuse my view of this thing—so that men will at long last be guaranteed equal treatment with women under the law. Without that change let us be absolutely clear that the resolution would be deeply and fundamentally flawed, and without that change at least some will argue that the resolution will not deserve our support. Some will say that in addition to that change the compromise allowing legislatures to override, at least temporarily, court decisions which appear in a legislature‘s view to be inappropriate also eliminates a flaw.
Judy Erola, p. 13123
Hon. Judy Erola (Minister of State (Mines)): Mr. Speaker, I am very proud at this moment to be a Canadian woman. Equality for myself and all Canadian women has ceased to be an elusive dream. Instead, it is taking on the shape of reality, moulded by generations. It is equality not according to the old maxim “As persons in matters of pains and penalties”, but as persons in the matter of rights and equality. You can bet that we want full equality.
What is this equality that we women have been fighting for? How many generations of men and women have asked the question: What do women want? Well, for our grandmothers who were not even considered persons and who fought for the vote, and for our mothers who supplied the labour force during the war and since, and for our sisters and daughters and granddaughters, I will tell you what we want. We want the rights in the Charter of Rights and Freedoms guaranteed equally to male and female persons. That means the original wording of Section 28:
Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. It is that simple. We want the reference to Section 28 in the override clause, Section 33, deleted. The charter will then carry a forceful statement of equality. This will give the courts a strong direction that sex discrimination cases require their strictest scrutiny.
For those who argue that affirmative action programs are jeopardized by the removal of Section 28 from Section 33, I remind them that the present constitutional proposals clearly state that affirmative action programs are not subject to the normal rules barring discrimination on the basis of sex. To go back to some of the things which have happened to women in this country, I am sure there are many who are not aware of the fact that long before the era of the suffragists, women in Quebec, Nova Scotia and New Brunswick had been entitled to vote and hold office. Why? What happened? Simply because it had not occurred to anyone to make laws to prevent them from voting. Of course, you can guess what happened when this existed; legislation was enacted to remove that right.
It was not until April 25, 1940, with the capitulation of Quebec, which was the last province to give votes to women, that the injustice was overturned. It is curious to recall that in our so-called enlightened age it is almost impossible to believe that the late Senator Therese Casgrain as recently as 1970 became the only one of Canada’s leading suffragists to hold federal office. I would like to think that Madame Casgrain, who died just three weeks ago, would be sitting in that gallery this afternoon, but I am sure that she is with us in spirit today. Well, women got the vote and, as most women know, we who were busy building homes, feeding cattle, ploughing the fields and milking the cows—as my mother did—having babies and raising families, then had to fight for the right to be recognized as persons. Most of us in this House are familiar with the Persons’ case, but I think it is worth while to go over it again. In 1928 five Alberta women, the “five persons” as they were later known, Henrietta Edwards, Irene Parlby, Louise McKinney, Nellie McClung and Emily Murphy, appealed to the Supreme Court of Canada to decide whether women were “qualified persons” who could be appointed to the Senate. Of course, the Supreme Court rejected this idea. The case was then appealed to the Judicial Committee of the Privy Council in England who accepted the idea that women were, indeed, persons. This now forms part of the constitutional law of this country.
However, this should serve to remind the men of this country that for decades, right up to the present time, women have participated and agonized in this constitutional exercise. We look upon the events of the past year as events which have been controlled, to a large degree, by women themselves. They did not let the drafters of the Constitution forget. Back in February, 1981 many thousands of women told the federal government that equality must be guaranteed in any charter of Rights and Freedoms to be entrenched in the Constitution. The government agreed to this and a special guarantee, Section 28, was added to the charter in the general clause. In April, 1981 this guarantee of equality for women and men was passed by all three parties in the House of Commons. Women thought that they had a guarantee that all laws in Canada would have to treat men and women in Canada equally. So there it Was. We have the charter, standing the way we want it, clearly defined. The battle was won, we
thought. However, it was not. Why? Because the provinces, the Supreme Court and the opposition parties put this government in the position of bargaining for consensus. The provinces changed the charter without consulting the people within the provincial boundaries.
We will recall, but I think it proper to remind this House and the people of Canada that it was the federal government that held constitutional hearings and an all-party committee sat for months. There were 303 witnesses, including individuals and groups, along with almost 1,000 briefs, letters and telegrams which were heard and received. The committee listened, responded and so developed a charter that did respond to the hearts and minds and needs of the people of Canada.
When it was found that the charter had changed, bowing to the pressure of the provincial premiers, the women looked up and said “No”. Women, united as never before, said no. It was time to tell the provinces no. Much credit is due to special groups and dynamic individuals who I will name later on this afternoon, but the credit for speaking out goes to the women of Canada, women working both in and out of their homes, mothers, grandmothers and daughters and particularly the women of this House. I refer to the member for Kingston and the Islands (Miss Macdonald), the hon. member for New Westminster-Coquitlam (Miss Jewett), the hon. member for Vancouver East (Mrs. Mitchell) and the hon. member for Vancouver Centre (Miss Carney)—in fact, all the women on the opposite side of the House.
It goes without saying—but I think I should mention it— that the women on this side of the House have given tremendous support, particularly my close friend and colleague, the Minister of National Health and Welfare (Miss Begin), who is leading us into another major battle for pension reform, which is very much needed to ensure the economic security of the women of this nation.
I must also pay tribute to the Prime Minister (Mr. Trudeau), who displayed his total commitment and confidence when he appointed me as the minister responsible for the status of women.
We have also been supported all the way by those women members in the other place. I refer to Senators Bird, Rousseau and Neiman who have worked tirelessly in support of these efforts.
Who actually galvanized these women into action? Two groups provided the main thrust. The ad hoc committee, with women such as Pat Hacker, Lynda Ryan Nye, Rosemary Billings, Marylou McPhedran and countless others, and the Canadian Advisory Council on the Status of Women-capably led by its president, Lucie Pepin, I am pleased to say—have provided an extremely powerful force in the past few weeks. Fortuitously, the council was meeting in Vancouver at the time of the signing of the final resolution, and it moved very quickly and very effectively. If there was any doubt about the strength and integrity of the Canadian Advisory Council on the Status of Women, those doubts have surely been dispelled by the events of the past ten days.
I would like to remind this House that the president of the advisory council, Lucie Pepin, and many of her provincial chapter councils, met this last weekend in Saskatchewan. These groups have managed to reach almost every Canadian woman and, I must say, it is working. This network—and we call it a network because that is what it is—went into action and the premiers heard from the women. Pressure continued to mount on each premier until, one by one, they fell. But will we have Saskatchewan? In order to adhere to the spirit of the accord, we must have all the provinces onside. I say to Saskatchewan, to the Premier of Saskatchewan, to the people of Saskatchewan: join us. I am convinced that reason and justice will prevail.
I must also say that much credit must go to a group of women which has worked largely behind the scenes for the past week or two. I refer to my department, Status of Women Canada, and its co-ordinator, Maureen O’Neil, who with a small but highly skilled staff have kept me and my colleagues informed of the implications of the various decisions and options offered throughout these negotiations.
On Friday the Leader of the Opposition (Mr. Clark) spoke of his background of growing up on a farm where women were equal. I share that background. I grew up on a farm, and I had the added advantage of growing up next door to an Indian reservation. This has helped me to understand the even greater injustices which have been done to native women. These women—including Sandra Lovelace, Jeanette Lavell and Mary Two Axe Early—must share equality with men under and before the law, a law for all Canadians.
Again I return to the Leader of the Opposition who, on Friday and on previous occasions, indicated his sensitivity to and understanding of this issue. This has been healthy for this country and for this House because during the past week, as never before, the men of this House have opened the doors and let the views of women in. Lest we think this has been a battle fought for and with women only, just this afternoon I received a letter from a senior citizen, and I am compelled to quote part of it:
I am a senior citizen war veteran who believes that l fought for a better world and society.
It is hard to understand that a minister had to be appointed to see that a Canadian‘s rights have to be upheld. There should be no question in our country of any Canadian being slighted on their rights. As l write this I am sorry to hear the radio news that there is a question of whether or not rights will be included in the Constitution. All Canadians must enjoy equal rights without questions being involved. It is a shame that any Member of Parliament should voice anything contrary.
Thank you for trying to make Canada equal for all citizens. You will pardon us, Mr. Speaker, the women of Canada, if we are optimistic and hopeful and just a little bit cocky. We have come a long way, but there is one step to go.
Pauline Jewett & Flora Macdonald, p. 13129
Miss Pauline Jewett (New Westminster-Coquitlam): Mr. Speaker, I too am grateful to have the opportunity to participate in this debate. I believe this is the third occasion on which I have addressed myself to the question of the role of women in Canadian society and to the future equality of women with men in Canadian society. Therefore, like others, I am distressed to discover that what is called an “override clause” has been put in the equality of rights clause, Section 28. With a lot of my colleagues, I was very glad that many features in the accord that was reached between the first ministers of the provinces and the Prime Minister (Mr. Trudeau) the other day are good ones, are progressive ones, are strong ones and are desirable ones. In that connection I was very happy to read that the new Premier of Manitoba had said that he will certainly not renege on francophone rights in that province or subject them to legislative approval.
Some hon. Members: Hear, hear!
Miss Jewett: There are good things in this resolution, but it is almost heartbreaking to see the legislative override of some of the most fundamental and most important parts of the Charter of Rights and Freedoms. When the proposal was put before the House of Commons I think we all felt that section 15, the equality of rights section outlawing discrimination on grounds of race, colour, religion, sex and so on, and its second component, the affirmative action provision encouraging legislatures to take affirmative action for disadvantaged groups, was one of the strongest parts of that charter. Perhaps it was because there were no women present, or perhaps it was because there were no black people present that the first ministers of this country crippled that section of the charter. It is all very well to say that a specific act can discriminate only for five years, but to me that almost destroys the intent, the purpose, the symbolism and the substance of that section. To then go on and apparently subject Section 28—which the women of Canada strove so hard to get in the Constitution and which the House unanimously passed in April-to an overriding provision that a legislature or the Parliament of Canada could deny the very rights and freedoms referred to in this charter guaranteed equally to male and female persons and that the government would do this apparently as an oversight, that it had not really thought about Section 28, the section to which Parliament gave a great deal of thought, adds insult to injury.
Hon. members will remember that the very day after the accord was signed I asked the Prime Minister (Mr. Trudeau) whether Section 28, the section guaranteeing women’s equal rights with men, was included. I remind you, Mr. Speaker, that the Prime Minister said:
I can only answer that my impression is that the clause would continue. I have not been involved in the drafting which went on between provincial and federal officials yesterday afternoon and, I believe, during the night as well. He went on to say:
There were some deletions, and aboriginal rights was one of them. Maybe the other clause was another. I am not sure. I will have to check that, and that is why I say I will see what was done on the drafting over night. A few days later a writer for La Presse said:
Questioned in that connection on the day following the constitutional conference by a NDP member, Miss Pauline Jewett. Mr. Trudeau admitted his lack of concern.
Mr. Trudeau remembered that he had sold off native rights. However, he only had a vague idea about women’s rights. We know that women are rather unimportant. A mere bunch. I tell you—
It was, of course, tragic that Section 34 affirming the rights of the native peoples, the aboriginal peoples of Canada, was dropped. At least they were remembered long enough to be dropped. Women were not even remembered.
Let us take a look at what the provincial premiers have said in the few weeks since while struggling to get back on side. Their comments vary from that of the Premier of New Brunswick saying there had been no discussion at all of Section 28, that their intention in the accord was to have Section 28 remain intact, with no override, as a statement of the equal rights of women with men, to that of the Premier of Alberta saying, first, that he was not sure whether or not Section 28 had been discussed, and then saying later that he had not intended that it be subject to the limitation that we have been calling the override, which would take the guts right out of it. We find Premiers Bennett and Davis saying that it certainly was not their intention to take out that section, and we find the officials saying that “it had been a drafting error”.
I think we might all come to the conclusion that no one seems to know whether they discussed this section, although the balance of the evidence seems to be that the first ministers did not discuss it. However, if they did discuss it, the impression most of them give is that they wanted Section 28 to remain intact, symbolically and substantively. No one has come forth publicly and said that this section was to be overridden as Section 15 was overridden.
I would suggest to you, Mr. Speaker, and to fellow members that we could appropriately, given this incredible confusion, pass the section in its original form in which we saw it in April. As I understand it, it is not part of the accord that it should be overridden, given what all of the premiers have said.
But what does this tell us about the position of Canadian women in society? Are we simply a detail, a drafting error? I noticed that we were recently blessed with the neanderthal wisdom on the editorial page of The Citizen of Ottawa. The editorial was headed “fix the details later”. The editorial reads:
The complaints by various women’s and native organizations about the constitutional resolution new before Parliament are not sufficiently persuasive— Let me emphasize the words “the complaints”. We are talking about our very rights as human beings, in the case of women, the women’s human right to equality, and in the case of the native peoples of Canada, their rights as the original peoples of this country. This editorial is talking about these as complaints. That is why a great many of us are distressed by the possibility that eviscerated Clause 28 will remain. Not a single member of this House, barring the Prime Minister and the Minister of Justice (Mr., Chrétien) who were the negotiators, should support Section 28 if this override remains in it.
Some hon. Members: Hear, hear!
Miss Jewett: Not a single member of this House should support it. But if any members do support it, do you know what they would be doing, Mr. Speaker? It would mean that we would be taking an enormous backward step, we would be denying the principle of equality of men and women. We would not have even the status quo. We would be going farther and farther backward.
I hope the minister responsible for the status of women agrees, I believe she does. I hope she does. She was not part of the negotiations. I do not know whether she asked, but she certainly did not know what had happened to Section 28. I hope that neither the minister responsible for the status of women, nor any woman nor indeed any member, would support this section unless the amended version that we are discussing today is brought in by the government itself on the ground that the cheapening of Section 28 was not intended in the accord.
For those who would argue that they can only accept the quality of women conditionally, I believe that they too are saying that they do not believe in the fundamental principle of equality of women with men. They are denying, as I said a moment ago, women’s human right to equality. It is a goal to be achieved because we do not have it yet; it is a goal to be achieved in and of itself. That is how a lot of us see the original Section 28. We see this, as I say, symbolically as an expression of the equality in our society of men and women, their entitlement equally to the rights and freedoms in the charter. We see it that way, as I say, symbolically. We also see it as a section in its original form of enormously important substance, because we do not in fact have equality, and when I say “we” I mean women. We do not in fact have equality today. Therefore, Section 28 becomes a goal to achieve.
For those who worry that affirmative action programs would somehow be ruled out by Section 28, I can only say that as long as an affirmative action program is a program that will help to achieve what is in Section 28 there is no conflict whatsoever, and Section 15(2) and Section 28 would be in harmony.
Similarly, if there is a discriminatory act under Section 15(1), and it is a positive act which is helping to achieve greater equality for those who do not have it now, then it too would fall within the ambit of the broad statement of equality in Section 28.
The fears then, it seems to me, although legitimately raised, are not legitimately founded. As a previous speaker said, there should be no taking of credit; every woman ‘s group in Canada had a great deal to do with getting the paramountcy clause, as I call it, Clause 28, included in April. I personally think the former minister responsible for the status of women had a great deal to do with getting the clause in.
Miss MacDonald: Right on.
An hon. Member: He sure did.
Miss Jewett: Every time he spoke, he turned another million Canadian women into feminists.
An hon. Member: The Lloyd works in strange ways.
Miss Jewett: While I am not going to single out, with that exception, who made such enormous contributions to the whole concept and principle of equality of the sexes, I must with sorrow express my regret that, with the exception of the present minister responsible for the status of women, and I am sure, although I do not know, the present Minister of National Health and Welfare (Miss Begin), no other woman on the Liberal side has engaged in this battle. They were not present at the famous February convention. They were not present at rallies in the past two weeks through which we have been trying to get the clause restored in its purity, and they were not even present today, with one exception, when the minister responsible for the status of women spoke. Have the women of the party been speaking outside the House, holding rallies and organizing? I am very distressed to say they have not. It seems that they have become gagged. Even in Quebec—-
Three days ago, an article appeared in the newspaper La Presse:
A gentle Yvette. The organizer of the Yvettes‘ movement, Mrs. Louise Robic, slightly worried the Liberals by insisting that the government account for its failing to entrench women‘s rights. Canadian women want to know what happened to their rights and freedoms… “A lot of women will be suffering from ulcers”, she said.
What could have become a real dispute did not last long however because Mrs. Robic, as befits a good liberal, readily accepted. Mr. Chrétien’s arguments. And she added: Well, we must fight the provinces, not the women of Quebec or Canada.
What can we do? I said a moment ago that the constitutional accord, or much of it, was worked out in the kitchen between the Attorneys General of Saskatchewan and Ontario
and the federal Minister of Justice-if ever there was a time when a woman should have been in the kitchen!
Some hon. Members: Hear, hear!
Miss Jewett: Much of it was drawn up, as indeed the whole accord was, without giving that kind of thought to the needs and the rights of the native peoples, the disabled and certainly of women, and I guess that proves once again that much as others may sympathize—goodness knows, many men do— when they get down to their negotiating and dealing, they do not think of the other half of the population not represented, and they do not think of the disadvantaged. Those thoughts are not paramount.
Therefore, as far as women are concerned, we must once again have our own party develop affirmative action programs, and develop them now, with the party leaders at all levels and the committees in every constituency saying: We must have 50 per cent of our candidates women.
Some hon. Members: Hear, hear!
Miss Jewett: That kind of action must be taken, and not just in the weak ridings. Since the kitchen-created Constitution was influenced enormously by officials, federal and provincial, only two of whom to my knowledge were women, clearly we must have an affirmative action program now in the federal public service of Canada to ensure that women are pulled up—and there are lots of bright women there—and put in positions of responsibility and authority. The federal government did it once, and rightly so, when it discovered that francophones constituted only 7 per cent or 8 per cent of the senior public service. The federal government did it just by saying: That will not do. l do not believe there was even a written edict; it was just the Prime Minister saying: That will not do. That is the kind of leadership women have not had from the men of Canada in the Liberal Party and government. There has to be affirmative action there. Clearly, it is in the senior ranks of politics and the bureaucracy that power resides.
Despite the evisceration of this document, the Supreme Court of Canada will still have a role to play, and it must also be changed. There must be women on the Supreme Court of Canada as well, and this has been argued before. That should be the next fight.
The lawyers who will be working to interpret this Constitution in various cases will, I am confident, be increasingly more balanced as more women graduate from law school. As I have said, the fact that there are more women graduating from law school is one of the most exciting things which has happened in recent years.
I read an article today by Michele Landsberg of the Toronto Star entitled “Help wage war for women‘s equality”. It is an excellent article and I recommend it to all Members of Parliament. In that article she suggests that there be a women’s watchdog in Ottawa to protect our equality rights. Right now the best watchdog in Ottawa is the ad hoc committee. I would also approve of that suggestion. I believe that until we have a strong if not equal, or perhaps for a period more than equal, representation in this House of Commons and in provincial legislatures, such as in Manitoba where women members constitute 12 per cent, and in the bureaucracies both federally and provincially, I do not believe we will be able to ensure that the indifference and neglect to the fundamental principle of equality of women will be seriously addressed. As I have said, I hope that the government will realize that since the dismantling of Clause 28, according to most of the premiers, was not part of the accord, it can proceed and we can proceed in Parliament.
It is true that it was neglect and indifference that made this so, but it provides us with a chance to benefit from it. We must remember, as the hon. member for Provencher (Mr. Epp) said a moment ago, that as important as the two orders of government are in this country, because it is a federal system, it can be said there is a third order. That is the people of Canada who are represented by various groups and many organizations. During the last year, we have certainly seen that third order in operation, as far as the women of Canada are concerned. I wonder if the provincial premiers have ever read the marvellous briefs that were prepared for the Joint Committee on the Constitution by women‘s groups and other groups all across this country. I wonder if they know that there is a third order, which is the people of Canada represented by these diverse groups.
finally, I submit that if we do not restore Section 28—and all of what I have said applies to Section 34 concerning the rights of the aboriginal people—it will go down not as an important day in Canadian history but as a day of infamy. I do not believe that is too strong a word to describe this. I hope that when the women of Canada have 95 per cent of the representation in the House instead of the 5 per cent they now have, and when we hold 100 per cent of the premiers’ places instead of none, and if, as may well be, we are pioneering a new constitutional accord, I hope and I am indeed confident that we will not treat the other half of the population with the indifference, injustice and complacency which so many of their number have inflicted upon us. That is a promise.
Jean Chrétien & Jake Epp, p. 13140
Mr. Chrétien: On a point of order, Mr. Speaker, I am pleased to be able to inform the House that I have obtained from all provinces which are parties to the accord their agreement that Section 28 on the equality of men and women should apply without the override clause. In addition, I am happy to report to the House that all provinces have agreed to enshrine aboriginal rights in the Constitution.
Mr. Epp: Mr. Speaker, I want to thank the Minister of Justice (Mr. Chrétien) for that announcement. I want to say on behalf of our party that we are pleased that the amendment before us, namely, to restore Section 28 as we had developed that section in the constitutional committee has now received agreement from the nine provinces which signed the accord. I take it that it was the nine provinces that had signed the accord to which the minister if referring. With regard to aboriginal rights, I take it from the minister as well that it is a restoration of what we have come to know as Section 34. That is how I have understood the minister’s comments.
On behalf of the Progressive Conservative Party, we are pleased that that is now fact. We always thought these provisions should have been restored. Obviously some changes will be needed in terms of technical changes in the resolution. Those can be worked out, Mr. Speaker, and I believe these two amendments should help to speed up passage of the resolution.
November 24, 1981, Flora MacDonald & Margaret Mitchell, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess, p. 13195 (click HERE)
Hon. Flora MacDonald (Kingston and the Islands): Mr. Speaker, I rise to take part in this debate today in a mood vastly different from that which would have characterized my approach had I spoken yesterday. My remarks then would have conveyed my anger that once again the fundamental principle of the equality of women and men was under siege and my despair that an 80-year-old struggle for the basic rights of women in this country had brought us but such a short distance and, finally, I would have expressed my fervent hope that right and reason would yet prevail.
I am glad to say that hope has won the day. I feel a deep and overwhelming sense of relief—and then of jubilation— that the amendment before us is to be accepted and Section 28 entrenched without qualification and without any override provision in the charter. That section merits repeating:
Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
But as we accept this amendment before us, let us not forget the hurdles that had to be overcome to achieve it nor the hard work and effort of thousands of Canadian women and men who made it possible.
Section 28, as hon. members will remember, was not in the original constitutional proposals introduced into the House in October of 1980. Neither was it a product of the weeks and months of the hearings of the joint parliamentary committee on the Constitution. That hard-working committee produced many amendments, but Section 28 was not among them. No, that section was the creation of hundreds—indeed, thousands—of Canadian women who converged on Ottawa last spring to speak their minds about what they considered their fundamental rights.
Who were those women and what did they represent? They were of all political affiliations and no political affiliation. They came from all parts of Canada and all backgrounds. They were housewives and students, professional women and store clerks, grandmothers and their children and their children’s children bound together by one great common bond, to see that justice prevailed.
The lobby that ensued in the weeks following the women’s ad hoc committee on the Constitution was one of the most successful and resourceful that Parliament Hill has ever witnessed. They convinced party member individually and collectively that a Charter of Rights and Freedoms, to be worthy of The Constitution its name, must declare forthrightly and nobly the true equality of women and men.
On a historic day last April, April 21, Section 28, which I read a little earlier, was accepted unanimously by all members of the House of Commons. That is the way it remained until earlier this month when the first ministers met in one last effort to make federalism work. They met to see if they could come up jointly with an agreed upon constitutional resolution. At that time Section 28 was left untouched, either through neglect or oversight or because it was considered to be of no great importance.
At that conference earlier this month Section 28 was not even discussed, as various first ministers have admitted. But bureaucrats, who have a way of dealing with what they consider technical details, soon put an end to that. They persuaded their political masters to emasculate Section 28 by subjecting it to a legislative override. Women, once again denied full equality in law, by their thousands took up anew the battle cry of equal rights.
During these past two weeks we have witnessed their tremendous effort with admiration and have been proud to be a part of it. The results are as we see them today—full restoration of the guarantee of equality in law to women and men, I am almost tempted to say, Mr. Speaker, “Let us hurry and get this resolution off to Westminster before somebody changes his mind”.
Some hon. Members: Hear, hear!
Miss MacDonald: What has for me been one of the most rewarding aspects of this year-long battle has been the political awakening and mobilization of thousands of Canadian women, women who never before had taken part in a political campaign but who now recognize the virtue of that word “solidarity”.
In all the battles that lie ahead, and there will be many, women know that they have forged bonds which will stand them in good stead whenever the need arises, and the need will arise. What has been achieved today is not an end but a beginning.
You will notice that I have used the phrase on several occasions “equality in law” because it is still sadly true that there is no equality in fact. I look at this little pamphlet put out by the Canadian Advisory Council on the Status of Women entitled “Women and Poverty: What are your Chances?” There is a section headed “Poverty: More likely if you’re a woman”. These are some of the points it makes:
There are 1.4 times the number of poor women as poor men in Canada.
Two-thirds of all minimum-wage workers are women.
Single mothers are especially at risk:
-83 per cent of all single parent families are headed by women.
-44 per cent of these families are living below the poverty line.
It goes on:
And your chances of being poor increase if you are old and alone:
-6 out of 10 single, divorced or widowed women over 65 have annual incomes under $5,000.
-Less than 1 in 4 widows can expect to get a widow’s pension from a private pension plan.
-One-half of all unattached women over 55 depend entirely on government pensions for their support…
Getting a job does not necessarily insure women against poverty.
One out of six women employed full-time earns less than $6,000 per year.
Women employed full-time earn only 62 per cent of what men earn.
The Canada/Quebec Pension Plan … the average income for a woman … is $99 per month while for a man it is $141.
Women did not choose to be in this position of deprivation and poverty, but society, attitudes and laws have combined to relegate hundreds of thousands of women to a life bereft of self-dignity and hope. We can ask, are women guaranteed equal treatment under the Criminal Code with respect to sexual assault? Do women receive equal pay for work of equal value? Should Indian women who marry non-Indians lose their status whereas Indian men do not?
The reinstatement of Section 28 in the Charter of Rights and Freedoms is a great step forward, but we have to recognize that it will not materially or magically change the status of women overnight. Attitudes are deeprooted and hard to dislodge. Decision-making in most fields will continue to be dominated by men. The provisions of this charter itself must undergo a three-year time lag before it can be used by individual Canadians to challenge discriminatory practices. That three-year period can be used by both Parliament and the provincial legislatures to change existing laws that deny the equality of women in fact, or to introduce new legislation advancing the status of women.
But why wait the three year period? Why not undertake a crash program now to bring all other legislation into accord with Section 28? The Government of Canada can set the example. It can do so by eliminating immediately the most glaring inequity in the country, the one for which we are internationally renowned. I refer to the lot of Indian women, condemned by Section 12(1)(b) of the Indian Act to lose their Indian status if they marry a non-Indian. Indian men, as we all know, do not lose their status if they marry a non-Indian.
When Sandra Lovelace, an Indian woman from New Brunswick who had lost her status, took her case to the United Nations Human Rights Commission, the federal government in its defence stated, and I quote from United Nations Human Rights Commission Communication R6/24 dated July 30, 1981:
Legislative proposals are being considered which would ensure that no Indian person, male or female, would lose his or her status under any circumstances other than his or her own personal desire to renounce it …
Legislative recommendations are being prepared for presentation to cabinet for approval and placement on the parliamentary calendar for introduction before the House by mid-1981.
That promise has already been overtaken by time. Let the government now come forward with legislation to correct this injustice and I am certain it will receive speedy passage, It will also be an earnest indication of the government’s firm resolve to accord the highest priority, both symbolically and substantively, to the full equality of women and men.
The battle for equality takes many forms and it will go on in many arenas, but in this past year the women of Canada have shown that they are more than up to it. They have won a signal victory and the country is the better for it. So, too, our system of federalism has been reaffirmed and the country is the stronger for it. Unilateralism has been rejected.
Canadian women have kept faith with those great pioneers of the feminist movement who, in their day, had to overcome much greater obstacles. In the early years of this century, it was Agnes McPhail, Emily Murphy, Nellie McClung and others who blazed the path. And more recently, Therese Casgrain, Ellen Fairclough and Judy LaMarsh.
Yes, the women’s movement of 1981 has indeed kept faith. Parliament and legislatures have responded to their efforts and, as a result, we can take pride in the fact that our Constitution will be a nobler, a loftier document. Women’s rights have been confirmed.
I have no doubt, Mr. Speaker, that these women of 1981, worthy successors of the early suffragette movement, had and will continue to have as their rallying cry Nellie McClung’s fighting words of the 1920s:
Never retreat, never apologize, never explain. Get the job done and let them howl.
Mrs. Margaret Mitchell (Vancouver East): Mr. Speaker, it gives me great pleasure to rise today in the House, a very important day for all of us in this House and indeed for the people of Canada. As we all know, last night the Minister of Justice (Mr. Chrétien) announced that the nine provinces which signed this provincial accord agreed that Section 28 of the equality of men and women would apply in the new Constitution, and would apply without the provinces being able to override this section.
The minister also announced that the provinces had now agreed to enshrine existing aboriginal rights in our new Constitution, the word “existing” being added to the former Section 34 which will be reinstated. I need not say once again how delighted we in the New Democratic Party are, after all the struggles of so many people in our party and in other parties and indeed citizen organizations across this country, that these new developments have taken place and are now approved across our land.
Some hon. Members: Hear, hear!
Mrs. Mitchell: As a member of the New Democratic Party and caucus, I am very proud that Section 28 was introduced by the New Democratic Party last spring. It was done in conjunction with many advocates from women’s groups who had legal advice among their own members and worked very hard to make sure that there were provisions in this Constitution that would make absolutely certain that equal rights for men and women would be entrenched.
I am also very proud that it was my leader and my party that over the past three or four years have made this a major issue in our campaigns and indeed in our performance in this House. There is certainly no issue more important than the whole question of the rights of aboriginal peoples and women of Canada.
Some hon. Members: Hear, hear!
Mrs. Mitchell: We in the New Democratic Party rejoice that equal rights for men and women once again will have paramountcy as a national goal which no province can ignore and, indeed, which the federal government also cannot ignore.
Women of Canada can take great pride in their very successful lobby which they organized over the past two-week period and previously last spring. They were able to protest the federal-provincial accord which had overridden equal rights for men and women in Section 28.
We should not forget, Mr. Speaker, that the first ministers of our provinces did not see this as a national right and priority. They did not consult with Canadian women. They had no Canadian women in their ranks sitting at the table making decisions. The Prime Minister (Mr. Trudeau) himself was willing to trade off protection of women’s rights for an accord that protected other rights but not the rights of women in Canada.
These attitudes, I must say made by male politicians who control decisions in this country, will not soon be forgotten by Canadian women, even though we are rejoicing that the changes have been made. I want to quote one woman lobbyist who said:
Hell hath no fury like a woman scorned.
This proves once again with dramatic clarity that it will be absolutely essential in the future to have women politicians in local, provincial and federal governments.
Another point which makes me very proud to have been associated with women’s groups who have lobbied so hard for equal rights and who have worked along with their parliamentarians in this regard is the solidarity which they showed toward the rights and efforts of native people, and the commitment which they still have to try to remove the provincial override from all sections which affect people’s rights generally.
This morning a member of the ad hoc women’s committee said to me, and I quote:
Last night’s announcement is a good beginning, but we have only won half the battle. We must get rid of the override completely regarding fundamental freedoms in Section 2 and also the Sections 7 to 15 regarding rights and freedoms which must be universally applied across Canada with no override clause for provinces.
This will be an effort to be continued not only by women’s groups but by all of us who are concerned about equality in our country that applies equally from sea to sea, regardless of which province we may live in.
For example, in British Columbia it happens that we have a very weak Human Rights Commission. The permanent members to this commission have not yet been appointed by the government. I regret to say, Mr. Speaker, that recently members of this commission were chastised because of their attitude and their language toward women. It is very reminiscent, incidentally, of Senator Hays, our famous representative on the Constitution committee. Is this the kind of body, in a province such as British Columbia, that we want to protect people’s rights and put pressure on the government?
Also in British Columbia we have a government which recently has forced women on welfare who have a young child to go to work. It uses very punitive measures to do this by depriving them of a certain amount of their welfare cheques. This is the kind of thing, again, that makes women fearful, especially if they think provinces may have undue authority with regard to certain rights, particularly as they apply to women.
On the other side of the continent, I want to say that I was told this morning by a woman from St. John’s that their premier worked very hard to keep offshore resources under provincial jurisdiction. We agree with that decision, but it is ironical, Mr. Speaker, that women who are applying for these very jobs in offshore resources have been refused work and have appealed to the Human Rights Commission.
I mention these examples to reinforce the importance of this change and the importance of having a national policy, not a policy that can be changed from province to province.
Some hon. Members: Hear, hear!
Mrs. Mitchell: I agree with the ad hoc women’s committee—I am quoting them rather frequently because I have seen them on many occasions in my office—that we have a long way to go and that there will be many cases to test these constitutional provisions. But we are pleased that such a good start has been made. By including Section 28 with no override, we expect, for example, that the Supreme Court of Canada will never again be able to rule against women as it did in the Lavell, Bédard and Bliss cases, as well as in other instances mentioned by the hon. member for Kingston and the Islands (Miss MacDonald) and yesterday by the hon. member for New Westminster-Coquitlam (Miss Jewett).
Some concerns have been expressed that guaranteeing equal rights for male and female persons may undermine affirmative action programs designed to open opportunities for women and for other minorities, such as the handicapped and ethnic groups. Of course, this will be tested in the courts. However, it is our clear understanding that equality is a constitutional goal, a goal which will apply to all provinces as a result of the change. Provincial affirmative action programs are the means of achieving equality through equal treatment of women and other minorities. This means the goal of equality will be entrenched and that affirmative action will be constitutionally protected as a means to achieve equality. We now have a federal principle, Hopefully this will be an impetus to encourage affirmative action programs within federal jurisdictions,
provincial jurisdictions and also in the municipal levels of government.
Before I move on to other aspects of discrimination and constitutional rights upon which I should like to touch today, I want to place in the record a summary of the evolution and development that has occurred in the Canadian women’s movement as a result of their fight for equality over the past few months. Never have Canadian women organized so quickly, realized their potential and lobbied so effectively for so just a cause.
Some hon. Members: Hear, hear!
Mrs. Mitchell: This is a summary of how they did it and what they gained through mass action and organization. It is important for women across Canada to know this and to learn from experiences so that they can go on to further actions of this kind. It reflects an awakening and the involvement of a whole new generation of women, along with many concerned men and many of us who are in older generations.
The ad hoc committee, for example, is connected with hundreds of organizations across the country. In January, 1981, women found out that the second promised conference on issues relating to the Constitution was cancelled. An ad hoc committee was formed to work with women in Parliament because there were so few of us in the House of Commons. The ad hoc conference was held on February 14. Hundreds of women attended on very short notice. There were no funds available from the government to help them get here or even to pay for telephone calls and stamps. They met, they lobbied, they learned, and they took many actions which caused many of us to become much more actively concerned about the Constitution, as it did not cover the rights of women at that time. They met with each caucus, with party leaders and with powerful people at all levels of government.
Of course, the committee was also connected with many groups across the country, such as the National Association of Women and the Law, provincial advisory councils, the Canadian Teachers’ Federation, the YWCA, the Ottawa women’s lobby, business and professional women, women in trade unions and women concerned with political action. It was a very democratic process and a very enlightening one. I know my colleagues will agree when I say that this was the major reason for having an expanded Constitution today, with the removal of the provincial override on women’s rights in Section 28.
Some hon. Members: Hear, hear!
Mrs. Mitchell: Why is Section 28 so important? I should like to mention quickly some examples of discrimination which were perhaps mentioned in questions posed in the House. These are examples of which I have been personally aware in my short experience of three years since becoming a member of Parliament. first, immigrant women. We know that the Immigration Act in some ways discriminates against women. Certainly the settlement services of the federal government do not provide adequate coverage for individual women who want to come into our country with rights equal to those of their male partners. For example, settlement services apply equally to women and their children, They do not allow them equally to take courses, to go to work and to learn English or French. Also we know that domestic workers, most of whom are women, experience difficulties when they come to Canada. Will the Constitution now help to protect their rights and move them toward citizenship more quickly?
There are many examples of women who are trying to get into the whole field of non-traditional jobs. Today I met with some of our brothers from the fishermen’s union in British Columbia. I was reminded of a case there where fisherwomen who were working as partners with their husbands were refused unemployment insurance benefits on an equal basis. Of course, they took their case to the Human Rights Commission and after a long struggle they won, I hope this discrimination will no longer be possible under the new Constitution.
I am reminded of women in Stelco, the women in the steel industry in Hamilton. I visited groups last year and discovered that Rosie the Riveter was welcomed in the steel industry during the war; in fact there was day care provided in the workplace. As soon as the war was over, there were no jobs for women in the steel industry. The Minister of Indian Affairs and Northern Development (Mr. Munro) should take note of this instance. The women in steel are certainly not putting up with this. Many have now regained their right to work in the industry. There are others fighting for equal opportunities to work in CNR, Douglas Aircraft and many other industries.
In my own riding I talked with members of the painters’ union and of the International Woodworkers of America. I am pleased that the labour movement and many unions which are dominated largely by male trade union members are now much more aware of the rights of women in this area. For example, members of the painters’ union are saying to their employers, “Look, if you are going to employ us, you are going to make jobs open equally to any person who can qualify for them, regardless of sex”. They have found that women can carry ladders and paint cans just as well as men.
Some hon. Members: Hear, hear!
Mrs. Mitchell: Last week I attended a meeting in Ottawa concerned with women in trades. I was told that there were many women with interests in mechanical, electrical and other trades traditionally considered as being in the field of male employment who want very much to get into these trades. One thing which happened in our society was that women in their education have been forced into sex roles and perhaps do not have the background or training for such skills. They find that there has been a cutback in the federal government of training programs and pre-employment upgrading programs to assist women to get into trades on an equal basis. The same thing applies to women wishing to enter high technology fields of the future, particularly in this area of the country, and to other areas where women must have equal rights and opportunities for employment with no question of sex involved. We hope the Constitution will now support the whole movement in which
we believe very strongly, as do our trade union friends—equal pay for work of equal value.
Last year in my riding there was a Kenworth Industries, CAIMAW strike, and women eventually won equal pay. They won that after a six-month strike. They should not have had to wait six months or to go on strike for equal pay, Mr. Speaker. This is another inequity which I hope they will challenge as the result of the constitutional changes.
There are many examples that have been raised in the House in the past year of women clerks in the public service, general service workers, research technicians doing jobs equal to those done by many male employees but who are being paid on a higher basis. This we will no longer tolerate, Mr. Speaker.
I cannot go on without mentioning bank workers, nurses and hospital workers who traditionally work at lower rates of pay than they should. Daycare workers are another important example.
Not only is this protection now in our Constitution, which will allow all people concerned with human rights to go before the courts, but I suspect it is the beginning of a change in attitude in the country—a change in the attitude of employers and workers themselves who will demand their rights.
Women in the home must also be recognized as workers who do an extremely important job in raising the children. They have the right to pensions, benefits and an income as well as the recognition that they are doing just as important a job at home as they would in the work force. We hope there will be changes and that the government will support this.
I have two more points to deal with before my time expires, Mr. Speaker. I am speaking primarily to Section 28 of the constitutional amendment dealing with women’s rights but I should like hon. members to know that this party is equally concerned with the whole question of aboriginal rights. The women of Canada have gone on record as showing solidarity with the native people in their struggle for the changes that will benefit them and protect their present rights but most important, perhaps, will protect their rights in the future.
November 25, 1981, Margaret Mitchell, House of Commons Debates, “Mrs. Mitchell—The Constitution—Request for Deletion of Section 33 of Charter”, 32nd Parl, 1st Sess, p. 13243 (click HERE)
Mrs. Margaret Mitchell (Vancouver East): Madam Speaker, it is my duty to present a petition to the House sponsored by the Ad Hoc Committee of Canadian Women on the Constitution. This petition asks for the removal of the override section, Section 33, from the Charter of Rights and Freedoms. It is the hope of Canadian women that members of Parliament will delete the shockingly regressive Section 33 in order to guarantee that basic rights and freedoms—and 25 of them are listed—cannot be violated by the provinces or the federal government.
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