Proceedings of the Special Senate Committee on the Constitution, 30th Parliament, 3rd Sess, No 2 (8 August 1978)
By: Canada (Parliament)
Citation: Canada, Parliament, Proceedings of the Special Senate Committee on the Constitution, 30th Parl, 3rd Sess, No 2 (8 August 1978).
Other formats: Click here to view the original document (PDF).
Thirtieth Parliament, 1977-78
SENATE OF CANADA
Proceedings of the Special
Senate Committee on the
The Honourable R. J. STANBURY
Tuesday, August 8, 1978
Issue No. 2
(See back cover)
SPECIAL COMMITTEE OF THE
SENATE ON THE CONSTITUTION
The Honourable Richard J. Stanbury, Chairman
The Honourable Jacques Flynn, Deputy Chairman
The Honourable Senators:
Connolly (Ottawa West)
Fournier (de Lanaudière)
ORDER OF REFERENCE
Extract from the Minutes of the Proceedings of the Senate, Wednesday, June 28, 1978:
“The Honourable Senator Connolly, P.C., moved, seconded by the Honourable Senator McIlraith, P.C.:
That a Special Committee of the Senate be appointed to consider and report upon the subject-matter of the Bill C-60, intituled: “An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”, in advance of the said Bill coming before the Senate, or any matter relating thereto;
That the Committee have power to engage the services of such counsel, staff and technical advisers and to incur such special expenses as may be necessary for the purpose of the inquiry; and
That the Committee have power to send for persons, papers and records, to examine witnesses, to print such papers and evidence from day to day as may be ordered by the Committee and to sit during adjournments of the Senate.
After debate, and—
The question being put on the motion, it was
Resolved in the affirmative.”
Clerk of the Senate
MINUTES OF PROCEEDINGS
TUESDAY, AUGUST 8, 1978
Pursuant to adjournment and notice the Special Senate Committee on the Constitution met this day at 10:03 a.m., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Argue, Barrow, Bosa, Bourget, Connolly (Ottawa West), Flynn, Forsey, Fournier (de Lanaudière), Godfrey, Grosart, Lafond, Lang, Marchand, Marshall, McElman, Olson, Rizzuto, Robichaud, Smith (Colchester), Stanbury, Williams and Yuzyk. (22)
Present but not of the Committee: The Honourable Senators Cottreau, Greene, McIlraith, Neiman and Perrault. (5)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel.
Witnesses: From the Department of Justice:
Dr. B. L. Strayer, Q.C., Assistant Deputy Minister (Public Law) and Special Counsel on the Constitution;
Alice Desjardins, Q.C., Director, Advisory and Research Services;
Miss E. I. MacDonald, Q.C., Senior Counsel.
The Committee resumed its consideration of the subject-matter of Bill C-60,
“An Act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters”,
assisted therein by Messrs. Cowling and du Plessis.
The witnesses answered questions.
At 12:25 p.m. the Committee adjourned until 2:00 p.m. this day.
The Special Senate Committee on the Constitution met at 2:05 p.m., the Chairman, the Honourable Richard J. Stanbury, presiding.
Members of the Committee present: The Honourable Senators Argue, Barrow, Bosa, Bourget, Connolly (Ottawa West), Flynn, Forsey, Fournier (de Lanaudière), Godfrey, Grosart, Lafond, Lang, Marchand, Marshall, McElman, Olson, Rizzuto, Robichaud, Smith (Colchester), Stanbury, Williams and Yuzyk. (22)
Present but not of the Committee: The Honourable Senators Cottreau, Denis, McIlraith, Neiman and Perrault. (5)
In attendance: Mr. Robert J. Cowling, Counsel to the Committee, and Mr. Raymond L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel.
Witnesses: From the Department of Justice:
Dr. B. L. Strayer, Q.C., Assistant Deputy Minister (Public Law) and Special Counsel on the Constitution;
Alice Desjardins, Q.C., Director, Advisory and Research Services;
Miss E. I. MacDonald, Q.C., Senior Counsel.
The Committee resumed its consideration of the subject-matter of Bill C-60.
The Committee continued questioning the witnesses.
At 4:55 p.m. the Committee adjourned until 10:00 a.m., Wednesday, August 9, 1978.
Clerk of the Committee
Ottawa, Tuesday, August 8, 1978
The Special Senate Committee on the Constitution met this day at 10.00 a.m. to consider the subject matter of Bill C-60, an act to amend the Constitution of Canada with respect to matters coming within the legislative authority of the Parliament of Canada, and to approve and authorize the taking of measures necessary for the amendment of the Constitution with respect to certain other matters.
Senator Richard J. Stanbury (Chairman) in the Chair.
The Chairman: Honourable senators, our intention is to meet today, tomorrow and Thursday, in accordance with the notice distributed to the committee members. This morning we shall first complete Mr. Cowling’s presentation. Mr. Cowling spent two days with us in an educational process, going through the bill. He will try to complete that this morning. We are then to hear Mr. Barry Strayer, Q.C., Assistant Deputy Minister of Justice (Planning and Research), who will help us, we hope, to clarify some of the intentions as expressed in the bill.
Tomorrow we shall hear Dean Lederman of Queen’s University. He will be followed, on Thursday, by Professor Tarnopolsky of Osgoode Hall.
The purpose of Dean Lederman’s being with us tomorrow is to give us an overview. He is a highly respected constitutional expert in Canada, and will try to put the proposals contained in Bill C-60 into the context of the constitutional process in Canada.
On Thursday, Professor Tarnopolsky will deal particularly with the Charter of Rights and Freedoms. He is recognized as an expert in the area of human rights, including our own Bill of Rights and the various declarations which have been prepared in several of the provinces.
I am looking forward to a meeting of the steering committee tonight, if possible, which will allow us to have tomorrow afternoon, if we can squeeze it in after Professor Lederman, a business meeting at which we can discuss further witnesses for our next meeting in September. We will then be able to conclude our meeting on Thursday as soon as we have finished with Professor Tarnopolsky.
Mr. Fairweather is not available at this time, he being on holiday. We shall have to look forward to having him at a later date, if, indeed, he is going to appear before us.
With that brief introduction, and my thanks to our deputy chairman for chairing the long and difficult meeting on July 26, we can begin. I have been reading the proceedings of that day, and appreciate his efforts in keeping you all in line. It appears to have been a very productive day, and I hope that this meeting will be as productive.
Senator Godfrey: Before we proceed, Mr. Chairman, we have just this morning received a copy of the earlier proceedings. It would have been valuable had we received it earlier. I
notice that the proceedings for July 25 and 26 have been consolidated. If it takes two weeks to get out two days’ proceedings, it should only take one week to get out the proceedings for one day. Could they not be printed separately? This is not very helpful, as we have had no time to study it.
The Chairman: I agree completely. I do not know whether the clerk of the committee wishes to make any comment, but I know that there were special circumstances which caused the delay on this occasion.
I now call upon Mr. Cowling.
Mr. R. J. Cowling, Special Council to the Committee: Mr. Chairman and honourable senators, our subject this morning is the charter of human rights. As the chairman mentioned, Professor Tarnapolsky will be with us on Thursday to deal with this particular subject. Therefore, I intend to deal with it in somewhat less detail than I would otherwise. No doubt there is a certain amount of work that we could do in preparation for his appearance.
As everyone knows, we do have a Bill of Rights in Canada at the present time. It was assented to in 1960. It was brought in by the Diefenbaker administration. It is an act of the Parliament of Canada, being chapter 44 of 89 Elizabeth II.
Senator Connolly (Ottawa West): Is it in the Revised Statutes?
Mr. Cowling: I do not think so. I may be wrong, but my recollection is that it is not in the Revised Statutes of Canada because it is considered to be a special document, which it is, of course.
Senator Connolly (Ottawa West): The British North America Act is in the Revised Statutes, and there is no reason why this should not be. I do not know what the reason is. Perhaps there is a technical reason. Let us leave it at that.
Mr. R. L. du Plessis, Q.C., Law Clerk and Parliamentary Counsel: The Canadian Bill of Rights is contained in Appendix III of the appendices volume of the Revised Statutes of Canada.
Mr. Cowling: The charter of human rights contained in Bill C-60 contains more items than the Bill of Rights that we have at the present time. If the committee members will look at the index on page (i) of the “Text and Explanatory Notes” the Table of Contents, they will sec that there are quite a number of items under “III. Rights and Freedoms within the Canadian Federation” — (a), (b), (c), (d), (e), (f), and (g) whereas the present Bill of Rights only covers paragraph (b) “Political and Legal Rights and Freedoms”. So it has been enlarged considerably.
I think it is fair to say that everything that is in the present Bill of Rights has been transferred into Bill C-60, with some amplification on the political and legal rights and freedoms chapter, in addition to the other chapters.
The intention of Bill C-60 is to make the charter of human rights part of the Constitution, which it is not at the present
time —at least, in a technical sense, although Professor Tarnopolsky has said that he considers that the present act is nevertheless part of the Constitution in a general sense. The intention of the charter of human rights, as contained in Bill C-60, would be to have it made binding on the provinces as well as the federal Parliament, and to entrench it; that is to say, have it enacted in such a way that neither Parliament nor any one of the provincial legislatures could unilaterally amend it.
Before becoming entrenched in that way, there is an intermediate stage, if I read the intention of the bill correctly, where the provinces, or any one of them, may adopt the charter, and in fact a little carrot is held out to them under clause 131 to do so.
In discussing the Bill of Rights, the subject invariably comes up as to making it a document which is absolutely firm and which cannot be amended, even by implication. That is the important thing, because it is dealing with the interpretation of laws that come after.
Senator Connolly (Ottawa West): I wonder if I might interrupt for a moment and ask you to point out to the committee the entrenching provision? There are no words in clause 6 which would bring about entrenchment.
Mr. Cowling: The entrenching provision is contained in clause 131 of the bill. It deals with the rather complex mechanics of how the charter of human rights will get into the Constitution in such a way that it cannot be unilaterally amended. That is the important issue as regards the Bill of Rights.
The present act, although it is not part of the Constitution and could be amended, repealed or modified by the Parliament of Canada at any time, contains what is known as a “manner and form” provision, which some authorities, including Professor Tarnopolsky, I gather, consider to be just about as effective, insofar as his effect on existing and subsequent legislation is concerned, as actually putting it into the Constitution.
Section 2 of the existing Bill of Rights reads:
Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights be so construed and applied as not to abrogate, abridge, or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared—
The present Bill of Rights has come before the courts on many occasions. The most important decision was the Drybones case of some years ago. It was a six-to-three majority decision of the Supreme Court. The authorities that have commented on that case, including Professor Tarnopolsky, seem satisfied that the Supreme Court regards section 2 of the present act as sufficient, if not to strike down then at least to not apply contrary provisions of subsequent acts of Parliament.
That may sound like an infringement on the sovereignty of Parliament rule with which we are all so familiar; but that manner and form provision, which says that unless it is expressly declared by an act of Parliament that it shall not operate notwithstanding the Canadian Bill of Rights, is sufficient to achieve that purpose.
So, you might say that we have in the present Bill of Rights one which has all the attributes of a Bill of Rights that is entrenched in the Constitution in the same way that the United States Bill of Rights is entrenched, subject only to its amendment, modification or repeal by Parliament. lt is thought that Parliament would shrink from such an attempt, that it would be so politically unwise to attempt an exercise of that kind, we are almost as safe with the present Bill of Rights as we would be if it were entrenched in the Constitution and made so that it could not be unilaterally amended.
Senator Flynn: Where do we see that, after the adoption of this part of Bill C-60 and concurrence by the provinces, Parliament could not change the provisions of the proposed charter?
Mr. Cowling: You do not see it, senator, and that is high on my list of questions for our next witness.
Senator Flynn: Could Parliament amend the Constitution in this respect without the concurrence of the provinces? That is my first question. Secondly, if the federal Parliament can do so, should the provinces, after having subscribed to this charter, want to amend it in their own area of competence, could they do so?
Mr. Cowling: I think they could. I think there is no doubt about that.
Senator Flynn: In that event, where is the infringement?
Senator Forsey: There is no entrenching. It is just flimflamming.
Mr. Cowling: The entrenchment will come at a later stage. We have no indication of how it is going to be done.
Senator Lang: There would have to be an amending formula, would there not?
Mr. Cowling: It is tied in with an amending formula in some way.
Senator Greene: Mr. Chairman, I wonder if I might ask our counsel, in an attempt to see what kind of ice we are on, whether or not he has any examples of legislation subsequent to the Bill of Rights which in fact impinged upon section 2. If section 2 has been honoured by Parliament to date, that would provide a foundation of parliamentary fact. In other words, if Parliament did not fool around with the Bill of Rights because of its quasi-entrenchment, or attempted entrenchment, vis-a-vis section 2, it may work for this.
Mr. Cowling: Senator Greene, unfortunately I am not familiar with all of the cases which have raised the issue of the Bill of Rights. I believe there is at least one of the category that
you describe, and that would be one of the breathalyzer cases, which involved the prosecution of an individual who had refused to take the breathalyzer test before consulting his lawyer. That prosecution was rejected. In that case the individual was arrested and asked to take a. breathalyzer test. He refused initially, saying he wanted to contact his lawyer. He was denied the opportunity to contact his lawyer for some two hours, but eventually he was able to make contact and, after doing so, he then agreed to take the test. But the authorities took the position that it was too late, refused to allow him to take the test and charged him with refusal to take the test. He was acquitted on that charge. I believe that the breathalyzer provisions were put into the Criminal Code some time after the Bill of Rights was passed in 1960. In the Drybones case, the most famous case, which involved interpretation of section 94 of the Indian Act, which I assume was in the Indian Act before 1960, there was a conflict between that provision and an ordinance of the Northwest Territories.
Whether, however, the breathalyzer case is a real test of the effectiveness of this manner and form type of approach that we find in the existing Bill of Rights I don’t know, because it was not so much a conflict between the Bill of Rights and the Criminal Code amendment as the way the authorities handled the situation; but it was effective, at least as far as that goes.
Senator Greene: There is no judicial decision that I know of—maybe you can help me—to take section 2 of the Bill of Rights to the extent of the Miranda case, for instance qua the right to counsel and so on. The Miranda case is quite clear, as I understand it, that a there is an absolute right, as interpreted by the Supreme Court of the United States, to advise someone who is arrested to his right to counsel, and short of that any evidence taken from him is inadmissible. I do not think section 2 has ever been interpreted as giving the kind of basic rights that the Miranda case gives in the Unites States.
Mr. Cowling: I agree. As I say, I do not profess to be an expert on this. Luckily, we are going to have one on Thursday. However, I think what you say is right. Our courts, it seems, have leaned over backwards not to find a conflict between the Bill of Rights and other statutes, even though in the Drybones case the Supreme Court indicated that it would be prepared to in effect strike down legislation that was in conflict. The decisions we have had to date indicate that the courts are very reluctant to find that that point of conflict has been reached.
Senator Greene: So you might conclude that the experience of the Bill of Rights is a fairly thin thread on which to hang any confidence we might have in Bill C-60, that it will give some form of entrenchment?
Mr. Cowling: I don’t know that entrenchment Is the answer. In the Drybones case and other cases the judges talked about the terrific responsibility applying a bill of rights placed on the
courts because of their apparent right to in effect strike down legislation. It may be more a question of getting the courts, shall I say, educated, to be a little bolder in their application, than a question of entrenchment or the specific language used in the bill.
Senator Greene: Is it fair to say that our courts have been reluctant to, what they call, legislate as compared to, say, the United States Supreme Court? For what reason I have never been able to figure out.
Mr. Cowling: As a non-expert, I think that is right.
Senator Greene: They are very chary to do anything that smacks of judicial legislation.
Mr. Cowling: I might just read one short paragraph from an article written by Professor Tarnopolsky in the Law Society of Upper Canada’s Special Lectures. He says:
In all other cases before the Supreme Court of Canada, both before and after the Drybones decision, although a majority has never detracted from the fundamental principles of the Drybones case discussed above, majorities have always been able, with one exception to so “construe and apply”—
Those words are in quotation marks because they are from the bill.
—the laws in question as not to find a conflict with the Canadian Bill of Rights.
Senator Lang: I have read that article by Professor Tarnopolsky, and I commend it to all senators. It is a very learned and competent article. Having read that, I went to this Bill of Rights, and if my interpretation is correct I would almost think that Professor Tarnopolsky was retained by the Department of Justice to add in these corrections to the interpretations that the Supreme Court of Canada has given to the Bill of Rights since its enactment. Throughout here we find little bits and pieces that seem to relate directly to every one of the cases he cites, and to which he takes exception as being a derogation from the principles behind the Bill of Rights that have occurred in specific decisions of the Supreme Court. Am I correct in that?
The Chairman: My understanding is that he was one of the people consulted. Also, he is regarded as an expert in the field. I took those Upper Canada Law Society Lectures, so I am well aware of those points that he raises. I suppose the Department of Justice is also. He has been raising those points insistently for some time, so I can understand their being taken into account.
Senator Godfrey: I should like to get this straight in my own mind, because I am not a constitutional expert and I am not very familiar with the Drybones case. In the Drybones case was the ratio decidendi that it did not have any retroactive effect?
Mr. Cowling: No. I think the statutes that were in conflict with the Bill of Rights in the Drybones case were both statutes which had been enacted before the Bill of Rights came into existence—
Senator Godfrey: That is what I mean.
Mr. Cowling: But that was not really the issue in the case. However, there was sufficient in the judgments for people to say that the courts would unhesitatingly apply the Bill of Rights even to subsequent legislation of Parliament unless it had in it this provision to the effect that it would apply notwithstanding the Bill of Rights.
Senator Godfrey: I am lost again. What do you mean, it would even apply subsequently? I am trying to find out whether there is a distinction between legislation passed before the Bill of Rights and after. Is there an official distinction in the judgment?
Mr. Cowling: There might be in this sense, although Professor Tarnopolsky has said that he is satisfied there is not in the case of the Bill of Rights. I think it goes like this. If you say something in a statute today and there is something in a subsequent statute which is inconsistent with that, by the very fact that it is a subsequent statute it will be presumed that there was an intention to repeal the inconsistent former statute. The way they got around that in the Bill of Rights-and there was some doubt as to whether the way they did it was adequate, —was to put in this provision that it applied to existing laws and to future laws unless in future laws there was an express declaration in the act that it was to operate notwithstanding the Canadian Bill of Rights. In other words, it is really a way of Parliament binding its successors. It does not completely bind them, because a successor Parliament could, of course, repeal the Bill of Rights.
Senator Connolly (Ottawa West): That is right-or that section.
Senator Godfrey: If it has to be expressly stated, why could they do it by implication if they felt a subsequent statute was different from or might be in conflict with the Bill of Rights? They did it with knowledge of the Bill of Rights and therefore intended to amend it. Is that what you are saying?
Mr. Cowling: That is the general rule of interpretation when it comes to statutes. However, as I say, they have changed that rule of interpretation, if you will, in the present Canadian Bill of Rights by this “manner and form” type of provision, which says that unless the subsequent act declares definitely that it is to operate notwithstanding the Bill of Rights then, in effect, it is as good as if it were entrenched in the Constitution.
Senator Flynn: On that very point, do you have in Bill C-60 something of the same kind; something to the effect that every future law of the Parliament of Canada shall commence with the words, “Notwithstanding section 2 of the Bill of Rights, we enact it this way”?
Mr. Cowling: It is in two places.
Senator Flynn: I am referring to section 2 which now enables Parliament to declare very clearly, “Notwithstanding section 2 of the Bill of Rights, we are enacting as follows … ,” and I am asking whether the same technique is provided in Bill C-60.
Mr. Cowling: That is why I was interested in Senator Lang’s comments, because I am not sure that the provisions in Bill C-60 in that regard are really strong enough. They are to be found in two places, one being in clause 5, beginning about line 20. Of course, clause 5 is just a declaration of principle, but the last few lines read:
—if they are to endure, be incapable of being alienated by the ordinary exercise of such legislative or other authority as may be conferred by law on its respective institutions of government.
One would like to have seen that, particularly a bill of rights proponent, more in the operative clauses of the bill such as clauses 6 and 7. But there is also clause 23, and I think this is really what you are referring to, Senator Flynn. Why it is not right at the beginning, I do not know, instead of being at the very end of the charter. That is on page 12, and it reads:
23. To the end that full effect may be given to the individual rights and freedoms declared by this Charter, it is hereby further proclaimed that, in Canada, no law shall apply or have effect so as to abrogate, abridge or derogate from any such right or freedom.
I would be interested to hear from other witnesses whether they regard that language as being as strong as that in section 2 of the present Bill of Rights, or whether they regard it as being stronger, or how they regard it. At any rate, it is not exactly the same.
Senator Flynn: It would be stronger, I think. But now the point raised by Senator Greene is that it is difficult for Parliament to say, “Notwithstanding section 2 of the Bill of Rights, we are going to enact as follows … ” But if this provision in clause 23 is to be read correctly, I think there would be no possibility for Parliament to abrogate unless by an amendment to the Constitution.
Mr. Cowling: Only after entrenchment.
Senator Connolly (Ottawa West): That is within the power of Parliament, too, if it is within the federal jurisdiction.
Senator Flynn: But it all depends on the amending formula.
Senator Connolly (Ottawa West): That is the next step.
Mr. Cowling: But the ideal language which Professor Tarnopolsky proposed at page 193 of the Law Society Lectures would be as follows:
Any provision of a law of Canada, whether enacted before or after the coming into force of the Canadian Bill of Rights, which is inconsistent with any provision of the Bill
of Rights shall, to the extent of any such inconsistency, be inoperative and of no effect.
That is strong language.
Senator Flynn: That is stronger language.
Mr. Cowling: That is short and sweet. It leaves no doubt.
Senator Argue: Mr. Chairman, I have a rather simple question. I am interested in knowing from the witness whether, if this bill were now the law of the land, it would have an effect on language rights in the various provinces. If it were in effect now, would it contain anything to protect English language rights in Quebec or French language rights in Saskatchewan? If so, how would this come about?
Mr. Cowling: Senator Argue, I was about to suggest that we should now turn to the bill and take the provisions clause by clause. There is a provision dealing with the subject you mention. Perhaps I could deal with it in a little greater detail when we get to it, but there seems to be a provision in that particular chapter which would allow legislation such as Bill 101 in Quebec to stand, and it would only be legislation of that kind which came after the enactment of the charter that would be inconsistent with it. But there seems to be a sort of grandfather clause insofar as Bill 101 is concerned.
Senator Argue: And for the charter to operate the province would have to pass legislation in accord with it. But in this bill as it stands at present, and without anything else happening, there is no protection for English language rights in Quebec and French language rights in Saskatchewan, any more than the protection which exists today.
Mr. Cowling: That is quite right, until Quebec decides to adopt it.
Senator Argue: As a Canadian, I would say that this bill, on that basis, falls to the ground because if it is doing nothing in a positive sense I think it is absolutely without value. I want it to be understood that I am not speaking in any way for any privileges for the English-speaking people in any part of Canada. I have been as much supportive of French speaking rights in my province, where they have not been granted, and I think it is a shame. Nevertheless, I have to say that, as a layman and as a Canadian, I am very disappointed that this bill does not do anything, after coming into affect, to enhance and protect and ensure the rights of English-speaking Canadians and French-speaking Canadians, no matter where the may reside.
Mr. Cowling: Only insofar as federal institutions are concerned.
Senator Argue: I do not think that at the present time the federal institutions are putting in jeopardy the rights of French-speaking people and English-speaking people anywhere in Canada. That may be a point that may be argued, and I think that over the years the treatment of the French-speaking people by the Parliament of Canada has left a great deal to be desired. Nevertheless, I think this bill falls far short of what its objective should be.
Senator Flynn: With regard to Bill 101, I am not too sure that if section 21 of the Constitution were accepted by everybody concerned it would not modify Bill 101 as far as language of instruction in schools is concerned.
Mr. Cowling: That is something I should have said. As far as the language of instruction is concerned, I would agree that section 21 would operate there. I am referring to clause 21 (2).
The Chairman: Perhaps we should proceed in an orderly fashion.
Senator Connolly (Ottawa West): Mr. Chairman, before you do that, I wonder whether it might not be wise to put something on the record right now about this word “entrenchment.” I think that to a layman this is a concept which is difficult to understand, but I think it might be fair to say that “entrenchment” does not mean that a provision which is entrenched is going to remain as it is forever. Even in the American Constitution, which is entrenched if anything is, there are ways and there is a formula for amendment, and I think “entrenchment” can be broadly described as a process whereby it is made more difficult to make changes than would otherwise be available to parliament.
Senator Greene: With due respect, Mr. Chairman, for my colleague Senator Connolly, I would say that without an amending formula entrenchment does mean entrenchment.. If there were no amending formula in the United States Constitution, then I do not see how they could have had any amendments. The have had 13 or so amendments which would not have been possible without an amending formula.
Senator Connolly (Ottawa West): That is true.
Mr. Cowling: Except that, as far as federal institutions are concerned, unless this has changed, if something is entrenched and the federal Parliament wants to get it changed, a joint address has to be adopted. I am not familiar with the terminology, but there are the two resolutions of the House and the Senate, and that goes over to the U.K. government which instantly acts upon it and the amendment is made in that way.
Senator Connolly (Ottawa West): It is a difficult thing; it is harder than introducing a bill in Parliament saying, “Amend such-and-such a section.”
Mr. Cowling: In the eyes of the public I suppose it would focus more attention on it, but it is really move political than legal, I am only talking about this now insofar as it applies to federal institutions.
Senator Connolly (Ottawa West): And at the present time before this bill goes through.
Senator Flynn: We haven’t got a Constitution. We have only an act of the Parliament at Westminster.
Mr. Cowling: And we will have an act of the Parliament of Canada.
Senator Lang: Mr. Chairman, where does clause 5 stand if, for instance, the government were to invoke the War Measures Act because of an apprehended insurrection?
Mr. Cowling: There is something about that later on.
Senator Forsey: There is something about health and safety.
The Chairman: It is still provided for.
Mr. Cowling: Yes, on page 12.
Senator Forsey: That is clause 25, isn’t it, Mr. Cowling?
Mr. Cowling: That is right, Senator Forsey. I thought there was something specifically on the War Measures Act. Clause 25 is another matter which I was coming to. Clause 25 would appear to open the door to the courts doing some quite extensive interpreting.
Senator Forsey: It does not say anything about the War Measures Act. I do not recall anything in the bill on that specifically, but it does say:
Nothing in this Charter shall be held to prevent such limitations on the exercise or enjoyment of any of the individual rights and freedoms declared by this Charter as are justifiable in … the interests of the peace and security of the public,—
Senator Flynn: That is rather vague.
Mr. Cowling: Section 6 of the present Bill of Rights repeals section 6 of the War Measures Act. I have just forgotten what it says.
Senator Lang: Does that reappear in the charter?
Mr. Cowling: No, it does not. I was thinking of the provision in the present Bill of Rights when I mentioned the War Measures Act. It appears to come all from clause 25.
Senator Forsey: There is something in Schedule A on page 75; subsection (5) of section 6 of the War Measures Act is repealed. I don’t remember what that subsection is. Can you enlighten us, Mr. Cowling?
Mr. Cowling: May I read it quickly, because I do not have the summary in my head either. Subsection (5) reads:
Any act or thing done or authorized or any order or regulation made under the authority of this Act,—
That is, the War Measures Act
—shall be deemed not to be an abrogation, abridgement or infringement of any right or freedom recognized by the Canadian Bill of Rights.
Senator Forsey: That has now been repealed.
Mr. Cowling: By Schedule A, on page 75.
Senator Forsey: What exactly does that mean?
Mr. Cowling: I wonder whether they feel that the wording in clause 25 is strong enough that they do not need that particular provision in the War Measures Act any more.
Senator Lang: Surely there is no harm in leaving it in there, is there?
Mr. Cowling: I suppose it may look offensive to some people. That is the only thing I can think of. It would then be up to the courts to decide, without subsection 6(5), whether invoking the War Measures Act was justifiable or not. The courts have to make a determination as to whether the facts at hand fell within clause 25 sufficiently to make the War Measures Act override the charter.
Senator Lang: Are you suggesting that the courts would arbitrate that, then, rather than Parliament?
Mr. Cowling: I raise the question, senator, because of the repeal of the section, which was very clear. Subsection 6(5) of the War Measures Act was clear. If that is going, you then have to fall back on other things, such as clause 25 in the bill.
Senator Lang: That would be litigated, presumably.
Senator Forsey: Yes.
Senator Connolly (Ottawa West): After the event, of course. It would have to be.
Senator Cowling: There wouldn’t be much time in an emergency situation.
Senator Godfrey: If, as you say, the courts have been reluctant to apply the Bill of Rights, then clause 25 will only continue that reluctance.
Mr. Cowling: This is my feeling, Senator Godfrey. Clause 25 really waters down some of the other provisions to a considerable extent, or opens the door for that happening.
Senator Robichaud: Could clause 23 or clause 25 be conceived in such a way that there would be no possibility for the executive council or Parliament to enforce conscription in the country?
Senator Flynn: What freedom are you mentioning?
Senator Robichaud: Well, lack of freedom if there is conscription.
Senator Flynn: I am looking at political and legal rights.
Senator Connolly (Ottawa West): It would be a question of the right of the individual to life, I guess.
Senator Flynn: Or security.
Senator Robichaud: But what would you invoke to enforce conscription? What would you invoke to force an 18- or 20-year-old-man to join the army and go overseas to fight for the freedom of this country?
Mr. Cowling: I think what they could do would be to tack on a clause saying that the act is to apply notwithstanding the Charter of Human Rights, and that would probably do the trick. If they did not do that, then it might be an issue that would be debated in the courts. I do not know; I have not thought about the particular problem that you raise.
Senator Connolly (Ottawa West): I suppose the normal way to get conscription is to operate under the War Measures Act, and to issue the necessary order.
Senator Smith (Colchester): What strikes me-and I am only asking if this is correct-is that what Mr. Cowling is really telling us is that until something is prevented which is controversial and which comes possibly within any of these proscriptions, it really will depend on whether the courts say it falls within the phrases:
—justifiable in a free and democratic society in the interests of public safety or health, the interests of the peace and security of the public, or the interests of the rights and freedoms of others—
So that anything which will not be found by the courts to fall within those phrases is prohibited, while anything that can be found by the courts to fall within the meaning of any of those phrases, as the courts define them, is not struck down, or is not prohibited.
Mr. Cowling: The last three lines say:
—whether such limitations are imposed by law or by virtue of the construction or application of any law.
“Imposed by law”, I suppose, would mean where the statute very clearly imposed them, possibly with a clause saying that it was to operate notwithstanding the Charter of Human Rights. That seems to me to be something that is optional, as far as the draftsmen of such statutes are concerned; but the other part of the phrase clearly envisages the courts being involved in this process.
Senator Greene: Mr. Cowling, I wonder if you could help me with another question, forgetting for the time being such dire things as conscription. Can you see any difference between what the procedure would be under this wording and what it would be under the present law in situations such as we had in the case of the declaration of Parliament under which the Anti-Inflation Board was founded, and at which some of the provinces took umbrage? If there were an inflationary situation such as persuaded Parliament to pass the Anti-Inflation Bill, would we be in the same boat? Would we have to go to the courts to see whether there was, in fact, justification for such a move? I think the Supreme Court of Canada had to decide on the matter, did they not?
Mr. Cowling: I forget. Was the case that went to the Supreme Court simply on the constitutional validity of the act, or was the question of the Bill of Rights raised? I thought it was a purely constitutional question, and I would not have thought that the Anti-Inflation Act was the kind of thing that the Bill of Rights could be invoked on.
Senator Greene: I was not referring to the Bill of Rights, specifically. As I understood the objection of some of the provinces, and of the Canadian Labour Congress, it was based on the fact of a mere declaration by Parliament, in a situation analogous to war—”emergency”, I think is the weasel word of Lord Haldane—where an emergency of such national moment existed that it justified the passing of the AIB legislation,
which had the effect of interfering with provincial rights. Would we still require a judicial decision today if Parliament decided that we were to declare an emergency because of the status of inflation, and pass laws which generally transcended the provincial authority? Would we still have to go through the same of procedure under the wording of the new bill, and would it stil depend upon judicial interpretation? As I understood the Supreme Court of Canada decision—which was not something that will go down in the annals of great judgments— it was that if Parliament declares that there is an emergency tantamount to war—
Mr. Cowling: Then you cannot go behind.
Senator Greene: … you cannot go behind. Are we still in the same boat under the new act?
Mr. Cowling: I do not think the charter of human rights really purports to affect that area at all.
Senator Forsey: But mightn’t it?
Senator Lang: On that point, continuing a little further, do we have anything in law today which gives rights and freedoms as members of particular groups, other than, say, a corporation, or something like that? I do not know of any.
Mr. Cowling: I agree. I do not know of any.
Senator Lang: The idea of having rights as members of particular groups is rather foreign to the common law precept.
Senator Connolly (Ottawa West): There are laws giving certain rights in connection with religious organizations.
Mr. Cowling: Professor Kwavnick had some interesting observations on that point in his memorandum. On the whole question of whether group rights should be mentioned at all, he suggested that sometimes group rights were a bad thing and tended to be rather anti-Bill of Rights.
Senator Forsey: We have group rights in section 93 now; “any class of persons” is the phrase used. Is that not so, Senator Flynn?
Senator Flynn: Yes.
Mr. Cowling: Mr. Chairman, time is running out. Perhaps we should try to skim quickly over some of these provisions. As· I said, clauses 6 and 7 repeat pretty well what is in the existing Bill of Rights, but not entirely. For example, in clause 6 “thought” and “conscience” have been added. What puzzles me about the existing act and this bill is the second to last one under clause 6 at the top of page 5. Unfortunately they do not have subparagraph numbers. It says:
—the right of the individual to the use and enjoyment of property, and the right not to be deprived thereof except in accordance with law;
It would be interesting to ask Professor Tarnopolsky about this, because it seems to me that there are not many examples today, if any, of an authority trying to take someone’s property other than under the authority of some regulation or legislation. The question at issue is whether or not proper compensation is going to be paid. That is not mentioned in this provision, and I do not know why.
Senator Forsey: I think it is very relevant, because you have on the books the Florence Mining Company case where the Legislature of Ontario took a particular piece of mining property in the Cobalt Lake district which the courts had awarded to one company and said it shall now belong to the other. The one that won the case in the courts, as lawyers will recall, promptly appealed to the courts on this and said, “You can’t do this”; and Mr. Justice Riddell upheld the validity of the Ontario statute with the historic words, “The maxim ‘Thou shalt not steal’ does not apply to the legislature.”
In the famous MacNeil case of Nova Scotia, exactly the same thing happened. The Supreme Court of Canada awarded the property of the late Mr. MacNeil to his creditors, and Mrs. MacNeil appealed to the Legislature of Nova Scotia, which passed an act awarding the property to her; whereupon the creditors, having another shot in their locker, appealed to the Government of Canada to disallow the act, which it did.
So you’ve got nothing in here. According to law, it doesn’t mean two hoots in Hades really, because the Legislature of Ontario could confiscate my property tomorrow. It would be perfectly legal. I have never heard of anything to overthrow the judgment of the Florence Mining Company case.
Mr. Cowling: According to the Bill of Rights, it is supposed to assist where the law is bad.
Senator Forsey: But it doesn’t.
Mr. Cowling: But this doesn’t.
Senator Godfrey: Is there not something in the United States Constitution which prohibits retroactive laws to confiscate property, which would take care of the situation? It prohibits. That would take care of the Florence Mining Company. But there is nothing in here to prevent it.
Senator Flynn: You have beneficial retroactive laws. I do not think you would want to prevent that.
Senator Forsey: They are very necessary.
Senator Connolly (Ottawa West): Even the banking committee would agree with that.
Senator Greene: Mr. Cowling, Pat Hart’s book on expropriation, for the Law Reform Commission, rather disagreed with your view. It seems to say there are rights which take away property, such as zoning. They can zone your property, which is in the middle of Bay and Queen in Toronto, and call it recreational land. That is expropriation without compensation. There is nothing in here which seems to proscribe that. So human rights have not been mixed in to the extent that I think Mr. Justice Hart indicates they should be in his Law Reform Commission publication on expropriation. I wonder whether anyone has considered that?
Senator Flynn: That kind of bylaw has always been annulled by the courts, to my recollection, in the province of Quebec, because of the provision in the Civil Code that you cannot really expropriate without compensation.
Senator Greene: But he cites many examples. The only one that comes to my mind offhand is the right to zone, which can in effect expropriate your land without any right to compensation.
Senator Flynn: It has always been annulled in Quebec.
Senator Connolly (Ottawa West): But not in Ontario.
Senator Godfrey: They can also increase the value of the property enormously. A zoning bylaw can decrease but it can also increase.
Mr. Cowling: The rule in Quebec, for example, is that if you are using your property for an industrial purpose and they change the zoning to residential, it could not affect someone who had vested rights and who was actually carrying on an industrial business at the time.
Senator Flynn: If you zone in a way that you cannot use it, it is deemed to be in the guise of expropriation, and the bylaw would be annulled.
Senator Connolly (Ottawa West): It does go to the question of compensation in every case, which is the point raised by counsel that here the concept of compensation might well be introduced as a factor.
Mr. Cowling: A more refined provision might be needed to deal with zoning, and things like that, which appear to be legitimate in certain cases—perhaps even without compensation.
Senator Greene: I think another one he cites is the diversion of a highway. In other words, a gas station operator might have his livelihood affected as a result of being bypassed, for which he would get no compensation.
The Chairman: I think we had better try to stick a little closer to our discussion, if we can. The point is well taken. We are going to have an opportunity to get into it with our other witnesses. What we are trying to do now is to complete our study of the bill.
Mr. Cowling: The only observation I would make about clause 7, Mr. Chairman, is that the very first right, the right to be secure against unreasonable searches and seizures, is new.
Senator Lang: Are these non-fundamental rights, Mr. Cowling, as opposed to those under clause 6? I do not know what the difference is between the two, or why there should be the two classes.
Mr. Cowling: Those that are in clause 6 appear in section 1 of the present Bill of Rights, and those are what we call the fundamental freedoms. Those that you see in clause 7 of Bill C-60 are the equivalent, shall we say, with the exception of the one new one that I mentioned, of those found in section 2 of the existing Bill of Rights. They appear to be specific examples of the other ones; some examples of the basic rights. But they do not say that in clause 7 of Bill C-60. It is really another list in a way.
Senator Flynn: What is meant by “unreasonable searches and seizures”? Is that the concept of the RCMP—
Senator Forsey: Yes, exactly.
Mr. Cowling: There again, I assume that no police officer would attempt a search or a seizure unless he were acting under some provision of law.
Senator Greene: That is a dangerous presumption.
Senator Connolly (Ottawa West): What counsel is saying, surely, is that that kind of thing should be referred to in the legislation.
Senator Flynn: The word “unreasonable” to my mind is badly chosen.
Senator Forsey: Something about warrants ought to go in there.
Senator McIlraith: The first right under clause 7, the right to be secure against unreasonable searches and seizures, means that the obtaining of a search warrant under the Criminal Code, or other statute, may not be sufficient. A search or seizure under such a warrant could still be reviewed under clause 7 of the proposed Charter of Rights and Freedoms and determined to be unreasonable.
Surely that is a bad piece of draftsmanship in expressing whatever idea they had in mind. We will have to inquire as to what it is they are seeking to achieve under that proposed right. As it is worded, it is meaningless.
Mr. Cowling: I do not know about the common law, but certainly under the civil law, senator, if someone did that maliciously, or even prosecuted someone maliciously, he would be exposed to an action for damages under the Civil Code. Perhaps it is the same kind of thing.
Senator Greene: It does not proscribe blanket warrants, which apparently the RCMP can get just for the printing. We
have not enhanced human rights to that degree. A police officer can still walk around with a blanket warrant.
Senator Connolly (Ottawa West): I would merely raise the question as to whether or not that should be done in the Constitution or whether it should be done under the Criminal Code or other specific legislation, such as the Income Tax Act, and so on. I merely raise that as a question.
Mr. Cowling: I have one observation while we are still on clause 7. I do not see anything in the proposed provisions which would deal with the question of statutory offences and mens rea. In this respect, I have particular reference to the seventh right set out under clause 7, which appears at the top of page 6 of the bill. The Law Reform Commission has published material on this, suggesting that, at least insofar as individuals are concerned, there should not be any more statutory offences in Canada. I raise that as the kind of thing that might be dealt with in a Bill of Rights, but it does not appear to be in these proposed provisions.
Senator Connolly (Ottawa West): Perhaps you could give the committee an example of a statutory offence as opposed to an offence involving mens rea.
Mr. Cowling: A statutory offence occurs as a result of the mere fact of having done a certain thing. In other words, if the facts are proved, you are guilty. There is no question of intent. It cannot be pleaded by the accused that it was a mistake or accident. By way of specific example, offences under the Highway Traffic Act would fall into this category, as would offences under the misleading advertising provisions of the Combines Investigation Act.
Senator Greene: Another would be failure to mail your income tax return on time. If the department says you did not mail your return in on time, that’s it.
Senator Forsey: May I ask what is meant by the words “or other constitutional safeguards” at lines 34 and 35 on page 5 of the bill? The rest is quite clear-that is, the right not to give evidence, and so on. What do they have in mind by those words? Is that a well understood phrase in law?
Mr. Cowling: I do not know. I hesitate to move on from these sections. They are obviously extremely important. They are there to be read, and we will be discussing them again. I do have a number of provisions to deal with, so perhaps, with your permission, I might move on.
Clause 8 is a new chapter in that we do not have an equivalent of that in the present Bill of Rights. I do not think I need read it. I would just make the observation that it appears that if, for example, Prince Edward Island adopted this charter, its law dealing with the ownership of land, not only by aliens but by non-residents of Prince Edward Island, would be invalid.
Senator Greene: So, this clearly would abrogate the P.E.I. law, which the Supreme Court of Canada unfortunately
ducked around. It did not find it was an inalienable right of a Canadian citizen to own land anywhere in Canada.
This particular law was aimed at preventing further American ownership of lands in Prince Edward Island, but in doing so they put into the bag all Canadians, and the Supreme Court of Canada missed a great chance to find that it was a right of citizenship of Canada to hold land anywhere in Canada.
That is the law in Prince Edward Island now and will continue to be unless this is adopted. This clearly ovrrules that law. I understand Nova Scotia either has or is in the process of establishing a similar law.
Mr. Cowling: Those laws would become invalid in the event of the adoption of this charter unless they are found to be laws of general application. That is dealt with in clause 8 of the bill. In my view, they are not laws of general application although there may be arguments raised as to what that means.
Senator Argue: Mr. Chairman, do I take it from what the witness has said that the province of Saskatchewan under the current laws does not have the right to have on its statute books a law preventing a non-resident of Saskatchewan from buying more than one quarter section of land?
Mr. Cowling: No, I think it would be permitted to have such a law. It may depend on the way the law is framed. The Prince Edward Island law was framed in such a way that it extended to all non-residents of Prince Edward Island, including Canadians as well as Americans or other non-Canadians. If I recall correctly, in the Prince Edward Island Court of Appeal decision that was the reason the law was upheld; it was held not to be a law in relation to aliens, which is under the exclusive jurisdiction of Parliament, because other Canadians were included. That is what saved it.
Senator Argue: The law was upheld?
Mr. Cowling: The law was upheld, and that decision was confirmed by the Supreme Court of Canada, although my recollection is that the Supreme Court tried to get away a little bit from this basis that it was the fact that other Canadians came under the ban, which was what was saving it constitutionally.
Senator Argue: To me, clause 8 seems to say that if this were the law of the country now a province does not have the right.
Mr. Cowling: That is right.
Senator Argue: And would not in the future have the right.
Mr. Cowling: That is right.
Senator Argue: Would that set aside the existing law, or is that only for the future? In other words, if this constitutional bill passes, does the Saskatchewan law lose its effect, and is it then possible for one billionaire in some other part of Canada to come in and buy up huge tracts of land in Saskatchewan as a right of being a citizen of Canada under the Constitution of Canada?
Senator Flynn: There may not be one.
Senator Argue: I think the province will be very sceptical of that type of privilege. I understand the difficulty of having a law saying that Canadians outside of Saskatchewan do not have the same rights as Canadians in Saskatchewan. I understand that, and I understand the difficulty. However, just the same, I think you would have the people of Saskatchewan, of Manitoba, and probably of Prince Edward Island, rise up almost en masse if they see the land on which hundreds of thousands of families today make a living being bought up by people outside the province who have no intention whatsoever of operating it themselves in the normal course of events.
Senator Lang: Do they have to sell their land?
Senator Argue: That is not the point. Surely that is a facetious question.
Senator Lang: No, it is not facetious. That is the right of property.
Senator Argue: Of course, a person doesn’t have to sell the land.
Mr. Cowling: The question you raise, Senator Argue, is a very interesting one, which is: Does a constitution have retrospective effect?
Senator Argue: It certainly has future effect.
Mr. Cowling: It certainly has future effect. What you arc asking is whether there is an implied grandfather clause for all existing acts whenever this Constitution comes into effect.
Senator Argue: Would you have an opinion on whether it would set aside existing law?
Senator Flynn: It would be easy for Saskatchewan to have a law of general application instead of mentioning that only residents could acquire land. You can say that nobody can acquire more than a certain amount.
Senator Argue: You have to understand the agricultural set-up to know that that kind of thing is not practical at all. This is a law that endeavours to protect the land of that province for countless numbers of people, for many people to have the opportunity to own it and farm it in smaller parcels. They don’t mind this law applying to Saskatchewan residents.
Senator Flynn: It is very easy to establish residence in any province. You stay in a boarding house for two weeks, and there you are:
Senator Argue: I have one further observation and one further question. Again I speak very much as a layman, really knowing almost nothing about the law, but it seems to me that when it comes to looking at the right of citizens in the owning of property it is clear that a Canadian shall have all these rights, even though it extends to owning huge tracts of land, even though that may be detrimental to the farming communities and the general welfare of people in those areas. When it comes to language rights there is not much strength—in fact,
there is no strength; there are just words. I think the whole thing is backwards. In other words, I think a language right should be far more important to an individual Canadian than the right of somebody in Toronto who has got oceans of money to go out to Saskatchewan and buy huge tracts of land.
Senator Flynn: They come from Calgary now.
Senator Argue: Or Calgary. They might come from Montreal or Quebec City.
Senator Flynn: They are very close.
Senator Godfrey: As one whose grandparents on his father’s side came from Ireland, I must say that this is by no means a new problem, the problem of absentee landlordism, so there is some validity in what Senator Argue is saying.
Senator Flynn: Put a big question mark there.
Senator Forsey: I am reminded of the English/Irish joke: “What about the absentee landlords?” “Sorr, me unhappy country swarms with ’em.”
The Chairman: Honourable senators, we have our other witnesses waiting, so let us move along.
Mr. Cowling: Clause 9 is the non-discrimination clause. You will note that it applies only to sections 6, 7 and 8 of the charter, although the charter does not end there but goes on with sections 10, 11, 12 and so on. The question has been raised as to why the application of that clause is confined to sections 6, 7 and 8. The suggestion is that it may have something to do with clause 21, which talks about the language of instruction in the schools. At least one interpretation of clause 21 is that a member of a majority group in a province might be more restricted in his freedom of choice in the education of his children in one or other of the languages than a member of a minority group.
Senator Forsey: Might I just point out parenthetically that in clause 10 this same business about race, national or ethnic origin, and so on, is included, so in effect clause 9 really covers clause 10 as well.
Mr. Cowling: Except that age is left out in clause 10.
Senator Forsey: Oh yes, that is right.
The Chairman: Because of the electoral problem.
Senator Forsey: Otherwise we might have babies voting.
Mr. Cowling: Exactly.
Senator Forsey: Or becoming elected. They might not do any more harm than some other people.
The Chairman: Do you mean in terms of age or mentality?
Senator Connolly (Ottawa West): Dead men have voted.
Mr. Cowling: I don’t know that there is too much change in clauses 10 to 12. The provincial legislatures would go from four years to five years, as is the present case for the Parliament of Canada. Senator Forsey, earlier you were raising the question of the right of Parliament to enact clauses 10, 11 and
12 insofar as provincial legislatures are concerned. I think I have found the answer.
Senator Forsey: It is clause 125, is it not?
Mr. Cowling: That is right. The provinces would have to adopt them. They are not being forced on the provinces; they are there for adoption at the option of a province until ultimately entrenched.
Senator Flynn: On the question of clause 11, the five years, what if no election is called at the expiration of five years from the date of the return of the writs?
Mr. Cowling: What is the sanction?
Senator Flynn: When must the elections be held?
The Chairman: When the Queen calls them.
Senator Flynn: You could probably call the election a year later and have a government there six years or seven years. There is no obligation to have the election at the date of the expiration of five years.
Mr. Cowling: There is something else that says there must be a session of Parliament every year.
Senator Flynn: That is all right.
Senator Forsey: That is for Parliament. What about the legislatures?
Senator Flynn: If there is no Parliament you do not have to have a session every year.
Senator Forsey: Surely that does not mean you would have to have an election.
Senator Flynn: But when?
Senator Forsey: Soon enough to have another sitting within twelve months. I have had this question put to me by a number of members of the opposition about the present Parliament. If it expires by the efflux of time on July 31 next, how long could we then go without an election? My answer has been: As far as I can see, until somewhere around, let us say, May of 1980, when there would have to be an election in order to fulfil the necessity of Parliament having a session at least once a year. However, it could be put off for a very long time. This is one case where if anybody tried this kind of game the only security against it would be the reserve power of the Crown to say at some point, “Look, I am sorry, Prime Minister, you’ve got to have an election. We cannot go on like this indefinitely. We cannot go on for eight or nine months.”
Senator Flynn: But this is not sufficient.
Senator Forsey: No, it is not sufficient, but you have now the reserve power of the Crown. But there is nothing in this that refers to any reserve power of the Crown except the power to refuse a dissolution, as far as I can see.
Senator Connolly (Ottawa West): Was there not an extension of the life of Parliament at the time of the first world war?
Senator Flynn: That is provided for in subclause (2).
Senator Greene: Mr. Cowling, what are they trying to get at in clause 11, in the last words:
—subject to its being sooner dissolved in accordance with law or the procedure recognized by accepted usage therefor.
Does that mean defeat in Parliament?
Senator Flynn: Yes, or a mere caprice.
Senator Greene: In other words, that is a custom inherited from British parliamentary procedure. Therefore, we are by reference adopting British custom as part of the constitutional bill without so saying.
Mr. Cowling: Maybe we are hallowing it.
Senator Forsey: Surely that is open to some slight qualification because we have not always followed British practice in a variety of things, and it is changing. What is “accepted usage”? With all due respect, I am inclined to think that on a great many matters of “accepted usage” you would find wide differences of opinion among people who are equally well qualified to make an assertion.
Senator Greene: Is King-Byng accepted usage?
Senator Forsey: I would think so because of the fact that you have the power to refuse dissolution put right in there. But this is indeed a question. Take the question of the proper procedure of amendment and you will find Professor Lederman saying that you must have the unanimous consent of the provinces, and then he kind of hedges on that. And then you get somebody like Mr. Brewin who, I think, is a good constitutional lawyer, and I do not think he stands alone, saying, “Well, no, you would not have to have unanimous consent of the provinces.” What is accepted usage? You could have a wide variety of opinion on this even among well-informed people. I might disagree with some person and somebody else might say, “Well, he is better informed than you are,” and he might well be right. On the other hand somebody might say, “Well, after all, Forsey knows something about this and he says the other thing.” So where are you? You might have 50 different opinions from people who are generally regarded, rightly or wrongly, as being pretty well informed on these things. Who knows?
Senator Greene: We might determine that in our deliberations we are here to try to make a better bill of this, if we can, and so we might consider spelling out what we mean by “accepted usage” instead of just using those words.
Senator Forsey: Why not just put in what we have now, “subject to being sooner dissolved by the Governor General.”
Senator Flynn: I would like to mention here also that this technique disregards the recommendation of the joint committee in 1971 which stated that it would have liked to have an election every four years at a fixed date unless there was a motion of no confidence in the House of Commons, or unless on a specific bill the government had declared that the vote would be construed as a motion of want of confidence. I think this idea of having an election any time between one year and five years is not satisfactory. The situation which has prevailed for the past six months, for instance, is a very bad one because nobody knows where we are going, or whether we are going to have an election. It creates a great deal of problems and I think it is not a good thing to retain the discretion of the Prime Minister to have an election at whatever time he chooses within the five years.
Senator Forsey: The remedy might be worse than the disease. Under the provisions in that report, to which I took strong exception at the time both in the committee and afterwards, you could have a situation where, for example, there was a tie in an election and it proved completely impossible to elect a Speaker and consequently completely impossible for Parliament to function. And there would be no provision for dissolution, and you would have to get along somehow for five years or four years, or whatever the period was, without a Parliament. Presumably you would have to summon it once a year and say, “Now, try and elect a Speaker.” Then they would fail to elect a Speaker, and that would mean rule by Governor General’s warrants.
Senator Flynn: If that is your only problem, it could be resolved by some kind of formula but it is very unlikely that you would ever have to use it.
Senator Forsey: Well, it has happened twice in provinces.
The Chairman: We are getting into questions of policy now.
Senator Forsey: Yes, but I merely want to enter a caveat against swallowing what the joint committee said on this question because the thing as it stood was cockeyed.
Senator Greene: The question still remains, Mr. Chairman, as to whether we should use these general words which, and here I agree with Senator Forsey, may mean different things to different people. Would it be better if we were to use the words of Senator Flynn’s bible or our own? Would it be better to spell out the conditions under which Parliament may be dissolved before five years? I think that is the issue.
The Chairman: I think that is a point well taken.
Senator Lang: On this same point, Mr. Chairman, I was wondering if it is an anomaly that in line 3 of clause 11 (1) we have the words “shall continue for five years,” and yet if you go to the BNA Act, it says, “not more than five years” in section 91.1 or, it says, not more than five years subject to dissolution.” Why is that the mandatory “shall” instead of “may”? Is there any significance to that?
Senator Fournier (de Lanaudière): “Shall” is binding.
Mr. Cowling: It is qualified by the subsequent proviso.
Senator Lang: When you say “may”, is that not what is intended rather than “shall”?
Senator Connolly (Ottawa West): It means the same thing. But if you change the language, then the courts can always say that there must have been a change of intention. You create problems by doing so.
Senator Lang: Section 91.1 and section 50 of the BNA Act seem to me to be pretty clear.
Senator Smith (Colchester): Are they not trying to be sure, Mr. Chairman, that they limit the maximum length to five years, and then you get the provision that in certain circumstances it can be shorter? It does have the effect of limiting the life definitely because it says, “no longer”.
Senator Forsey: There is provision for prolonging it too. Perhaps it could be “five or such lesser number of years.”
Senator Lang: It is very obscure.
Mr. du Plessis: In section 50 of the BNA Act, the word “shall” appears. It says that the House of Commons “shall continue for five years from the date of the returning of the writs.” And “subject to being sooner dissolved by the Governor General and no longer.” So the word “shall” does appear.
Senator Lang: What about section 91.1?
Senator Forsey: There is no corresponding section on the legislatures, is there?
Senator Flynn: I think in the fundamental rights here, the right to an election every five years should be spelled out. It is more important to have the right to an election every five years than to deal merely with the term of the House of Commons. We define only the term of the House of Commons, but the right of the citizen is to an election.
Senator Godfrey: That is a much better way of putting it.
The Chairman: Perhaps we can carry on from there. That is a point well taken.
Mr. Cowling: The next point deals with official languages and language rights, which are new insofar as the Bill of Rights is concerned. Mr. Chairman, I had some difficulty with clause 13. I am not sure I understand what is meant there. It says:
The English and French languages are the official languages of Canada for all purposes declared by the
Parliament of Canada or the legislature of any province, acting within the legislative authority of each respectively.
That seems to leave it up to any province to declare whether it is going to be English or French. It is not mandatory. There is nothing mandatory about it.
Senator Greene: Is there anything in the BNA Act which corresponds to this?
Mr. Cowling: The only thing on language in the BNA Act, Senator Greene, is section 133, which was recently interpreted by the courts in Quebec. The principle of section 133 of the BNA Act is retained in Bill C-60 and is enlarged upon to a certain degree. Section 133 requires the statutes, for example, in Quebec to be in both French and English, and of course the statutes of the Parliament of Canada. By clause 15 of the bill this would be extended, if the provinces accept this, to Ontario and New Brunswick. New Brunswick already publishes its statutes in both languages and has been doing so for some time.
Senator Flynn: What do you mean by “for all purposes declared by the Parliament of Canada”? Are there any purposes that could be excluded?
Mr. Cowling: I have some difficulty with that provision, Senator Flynn. I don’t know what it means.
Senator Godfrey: This is another example of where Professor Kwavnick’s suggested drafting is far superior to any ‘other example.
Senator Smith (Colchester): Mr. Chairman, could we return to Mr. du Plessis’ reference to section 50 of the BNA Act, because I think he is clearly right and that what appears in section 91.1 has no operative power at all, except to say that the Parliament of Canada cannot prolong its life beyond five years. It is merely preserving the right of the provinces to have to do with the life of Parliament. I submit that what Mr. du Plessis said about the effect of section 50 and the use of the words there is not only relevant but is the basis of what we are considering in this bill in the same way.
Mr. du Plessis: On that same point, senator, someone asked the question about the provincial legislatures, and sections 85 and 86 of the BNA Act deal with the duration of legislative assemblies. For instance, section 85 says that:
Every Legislative Assembly of Ontario and every Legislative Assembly of Quebec shall continue for Four Years from the Day of the Return of the Writs—
Senator Forsey: That is subject to the provisions of section 92.1, and, in fact, every legislature in Canada has prolonged its life to five years and, in some instances, Saskatchewan has prolonged its life beyond that simply by an ordinary statute.
Ontario did it twice, in fact, in two successive years, ’42 and ’43.
Mr. du Plessis: In other words, those sections are not entrenched.
Senator Forsey: Not at all. They are subject to the provincial power of amendment.
The Chairman: Do you wish to continue, Mr. Cowling?
Mr. Cowling: Mr. Chairman, I have no particular comments to make on these other sections, except of course when we get to clause 21.
Senator Connolly (Ottawa West): If you are going on to clause 21, may I ask a question about clause 14(2)? It says:
Any individual has the right to use English or French, as he or she may choose, in any of the debates or other proceedings of the legislative assembly of any province.
Should that be qualified by saying, “as its legislature may prescribe”?
Senator Robichaud: Well, this is arrogant, but the other one would be meaningless.
Mr. Cowling: Except that the province, of course, has to decide whether or not it will adopt this charter of human rights before that would be applicable to it.
The Chairman: It sounds as though he can talk, but nobody will understand him and it will not be written down.
Senator Greene: That might be beneficial.
Senator Connolly (Ottawa West): Well, for provinces it does involve quite serious consequences.
Senator Robichaud: That presumes that the legislative assembly will consent to this.
Senator Connolly (Ottawa West): And that is the question I asked.
Senator Flynn: If this is adopted, the right will be there, pure and simple.
Senator Connolly (Ottawa West): Yes.
Senator Robichaud: With the concurrence of all the provinces.
Senator Flynn: They have to adopt the Bill of Rights.
Mr. Cowling: The way I understand it, Senator Robichaud, it could be done on a piecemeal basis. In other words, New Brunswick might decide to adopt the charter of human rights as part of its provincial law, but, for example, Nova Scotia and Alberta and the others might not. One or more Provinces may or may not decide to.
Senator Robichaud: That is why it is meaningless or arrogant the way it is. It is trying to impose something on the provinces which is within their exclusive jurisdiction.
Mr. Cowling: Well, it is a suggestion as to what they should do.
Senator Godfrey: I cannot agree with Senator Robichaud at all. We are not trying to impose anything on the provinces. The provinces have to consent to this, so it is certainly not an imposition.
Senator Robichaud: With this we are trying to force the provinces into something.
Senator Godfrey: No.
Senator Forsey: It cannot apply to any province unless the province opts in. That is quite clear.
Mr. Cowling: Clause 131 (1) provides for the initial application of the Canadian Charter of Rights and Freedoms. Remember that the charter of human rights is all of these provisions we have been talking about. It is not only what we think of as the Bill of Rights, but includes the thing about the legislature, the language rights, the education rights ans so on. All of that is defined as the Canadian Charter of Rights and Freedoms mentioned in clause 131. Subclause (1) says that it only applies to matters over which Parliament has jurisdiction initially.
Senator Robichaud: Mr. Chairman, I think I should come back to this point, with your permission. The intention behind this was clearly indicated by one of the cabinet ministers at a conference about three or four weeks ago on television. Eight cabinet ministers were interviewed by Peter Desbarats and Peter Trueman. One cabinet minister clearly indicated that the federal Parliament would overrule provincial legislatures, because they believe that the people in those provinces are behind this. Now, that is the intention and it is clear.
Senator Godfrey, I cannot agree with you. They intend to disregard provincial legislatures because they feel that the people in those provinces are behind the federal legislation.
Senator Godfrey: Mr. Chairman, I would appeal to Mr. Cowling. There is a provision in this bill itself which is contrary to what Senator Robichaud has said.
Mr. Cowling: Well, both provisions are there, Senator Godfrey. Subsection (3) of clause 131, on page 60, suggests that the provinces may, if they wish, adopt the Canadian Charter of Rights and Freedoms. You will see that the little carrot that is held out to encourage them to do so is that if they do, then the power of disallowance of provincial legislation disappears. I wonder if it is not a rather withered carrot, because I do not think that that particular power has been used for quite a number of years. It is still very much there, but there arc questions that arise as to whether it is any longer politically feasible to use it. I do not therefore know how many provinces are going to be enticed into adoption of the Bill of Rights, for that reason alone.
Senator Flynn: Don’t forget clause 125, with which we dealt before and which provides for deemed approval.
Mr. Cowling: You have that in clause 131, again. Subclause (2) of clause 131 contains a special deemed approval provision just for the charter. It is the same idea as is contained in clause 125.
Senator Flynn: But clause 125 is for the whole bill.
Senator Forsey: Clause 131 (2) says very much the same thing, does it not—”shall be deemed”?
Mr. Cowling: I think clause 125 deals with what they call the designated provisions, like clause 91 and clause 92, and it has a deemed approval provision. Clause 130 has a similar provision in subclause (2). That deals with the statement of aims, which we have not discussed at length in the committee as yet. Clause 131 deals with the Canadian Charter of Rights and Freedoms, and subclause (2) has the deemed provision for those provisions, so that that deeming provision is repeated at least three times, I think, in the implementation clauses.
Senator Flynn: The whole front is covered.
Mr. Cowling: The question arises as to whether it is the intention to go to the United Kingdom Parliament and get this done.
Senator Forsey: It is the point Senator Hayden raised at the last meeting.
Mr. Cowling: Mr. Chairman, in view of the fact that we have gone on a little longer than we anticipated, I think the most important provisions have been dealt with.
Senator Connolly (Ottawa West): Do you mind if I ask another question on that? I think these clauses are very important. My question is very simple and it deals with clause 16(2), which says:
16.(2) Either English of French may be used by any person in, or in any pleading or process in or issuing from, any court of Ontario, Quebec or New Brunswick.
Now, New Brunswick has such a provision, Quebec has such a provision, but I take it that Ontario does not at this time have such a provision. Therefore the provisions of 131 will have to apply if that is to affect Ontario. I just wonder why’ Ontario is included in the clause at this time when it does not have the provision.
Mr. Cowling: I do not know. There is quite a substantial French population in Ontario, although I do not know what the exact figures are.
Senator Connolly (Ottawa West): Everybody knows that, but the question I ask is, since Ontario does not have that provision, while Quebec and New Brunswick do, I wonder why Ontario is mentioned specifically here.
Mr. Cowling: You say New Brunswick does. Senator Robichaud will enlighten me, but there is nothing in the BNA Act about New Brunswick having to have this provision. It may, in practice, but I think only in certain courts.
Senator Robichaud: I will tell you what we did in New Brunswick; we simply followed in a practical way the Official Languages Act of Canada and put it into practice.
Mr. Cowling: That was New Brunswick’s own decision.
Senator Forsey: Well, surely the matter of Ontario would come under clause 131. It would have to opt in, subject, however, to this famous “deeming” business which Senator Hayden raised last week. Suppose it does not opt in, then at a certain point, once this has been adopted by the Parliament of Canada, it can be “deemed” to be in the proper form where in the British North America Act it brings the whole thing into effect. In other words, it is ambiguous. “Yes, all right, you have to opt in, but from the day this comes into effect you shall be deemed to have consented,” or words to that effect. It’s most peculiar. “In again, out again, off again, on again, gone again Finnigan.”
The Chairman: Are you expecting the reporters to take that down, senator?
Senator Forsey: Surely there are enough Irishmen around to know about ” … off again, on again, gone again Finnigan.”
The Chairman: Someone has asked when we intend to adjourn for lunch. I suggest that we follow our earlier practice and adjourn at about 12.30 and return at 2 p.m. I am hoping that we will be able to begin hearing Mr. Strayer before lunch. However, we do not want to curtail this important questioning.
Mr. Cowling: Mr. Chairman, other than reading these provisions or trying to summarize them—and they are summarized in the explanatory section—I do not have any particular observation to make on them. It does not mean that they arc not important, but I think they are reasonably clear—unless you would like me to read them.
The Chairman: We may well want to discuss them in terms of policy and form with Professor Tarnopolsky on Thursday. If the members of the committee have finished with their questioning of our counsel, in the educational process of going through the bill, perhaps we can plan to review what we have done today in time to be prepared to question Professor Tarnopolsky more fully on Thursday. Are there any further questions or comments?
Senator Forsey: May I ask a question about the last words in clause 22 on page 12? It says:
—no law made by any such institution after this Charter extends to matters within its legislative authority shall apply or have effect so as to affect adversely the preserva-
tion of either English or French as the language spoken or otherwise enjoyed by any such group of individuals.
I would like some lawyer to tell me exactly what the effect of that is. Perhaps I am asking too much. It seems to me you might have quite a problem for the courts there, because some odd character might say it might look like a perfectly innocent and irrelevant statute affecting adversely the preservation of one language or the other.
Mr. Cowling: Those two parts seem to be a sort of preamble for the operative part, which comes at the end. That is the only part that really has any teeth in it, although I agree with you, that I think a court would have difficulty in knowing what to do.
Senator Connolly (Ottawa West): What do they mean by “such institution”? Is that “such institution” of government?
Mr. Cowling: Yes. “Institutions of government” is a phrase used in the second preamble on page 11.
Senator Forsey: Would that apply to the subordinate legislation enacted by the Governor in Council?
Mr. Cowling: I suppose the kind of thing that is being envisaged here, is that bill 101 in Quebec covers matters of education, but it also covers a number of other things. It says, for example, that you cannot any longer put up a sign in English. That, I suppose, would be a question for a court, as to whether that kind of law adversely affected the preservation of the English language.
Senator Forsey: Yes, in future; but this says “after this Charter”. In other words, Bill 101 goes scot-free.
Mr. Cowling: That is quite correct. There seems to be an implied grandfather clause for any legislation that has managed to get on the books so far. As you know, Bill 22 was the forerunner of Bill 101, and someone has questioned whether the numbering of this particular clause was simply a coincidence.
Senator Greene: I hope we will put one of our own asterisks, quite apart from the official asterisk, beside clause 16(2), to which Senator Connolly referred, because not only is it not the law of Ontario, but presently, as I understand it, it is an avowed government policy in Ontario to approach this whole question not by legislation but quietly. I think the provincial legislature either turned down a bill or somehow got rid of a bill which would have implemented what clause 16(2) purports to do. The government said, “No, we are not putting it in legislation.” If we want to twist the tail of Ontario rather than encourage their participation in this constitutional procedure, I cannot think of any better way of doing it than by passing clause 16(2).
Senator Connolly (Ottawa West): With the word “Ontario” in there?
Senator Greene: Yes. In other words, you are telling Mr. Davis, “To hell with you. You do not agree it should be in legislation, but we are telling you it is going to be.”
Senator Connolly (Ottawa West): That is subject to clause 131.
Mr. Cowling: I do not quite follow why Manitoba is not mentioned there, because Manitoba is supposedly in the same position as Quebec, insofar as these matters are concerned. The only reference is in the explanatory note to clause 18. Clause 18 says:
Nothing in sections 14 to 17 shall be held to abrogate,… any right … with respect to the English and French languages … that exists or is continued by virtue of any other provision of the Constitution of Canada.
Senator Connolly (Ottawa West): Is Manitoba an example of that?
Mr. Cowling: Yes. It is in the act that brought Manitoba into Confederation. It is a provision almost identical to section 133, is it not?
Senator Forsey: Absolutely. Is that provided for in another clause—section 23, say, of the Manitoba Act? I can’t remember where it is, but I saw it a few moments ago. I think you will find that there is even a marginal reference to the fact.
Mr. Cowling: My question is, why not put them all together in clause 16, since we seem to be talking about the same thing. I cannot see why Manitoba should be dealt with in another place. After all, Quebec’s position on this comes from clause 133, which is similar to the Manitoba legislation. I would have thought it would be convenient to mention them all in clause 16.
Senator Bosa: The explanatory note of clause 22 says:
—preservation of English or French as the language spoken or enjoyed by an identifiable minority group.
What is meant by “identifiable”—by ethnic affiliation, by appearance, by region?
Mr. Cowling: That is a good question. It does not say.
Senator Forsey: Sometimes the ethnic origin and the language spoken may be very different. I have run into all kinds of such people in the western provinces, and even one or two in New Brunswick. In fact, there is a member of the House of Commons from New Brunswick who says he is a French Canadian who cannot speak French. I have run into such people as Yvonne Patenaude who say, “I am sorry, I don’t speak any French.” So, does she or does she not belong to “an identifiable and substantial linguistic community”?
Senator Robichaud: There are a lot of Fergusons and Johnsons in New Brunswick who do not speak a word of English.
Mr. Cowling: It would appear that it is left to the courts to interpret. Perhaps the thinking is that it is so difficult a thing to try to conceptualize in any detail that leaving it to the courts is the only way.
Senator Forsey: What would you do with the Lindsay family who had an island on the lower St. Lawrence at the outbreak of the last war? They could not speak a word of English, let alone Gaelic, but if you called them French Canadians—and a friend of mine knew these people—they said, furiously, “Non, nous sommes des Ecossais.” When the war of 1939 broke out, Monsieur Lindsay summoned his eight stalwart sons—Donald, Hector, Ian, Malcolm, and so on—and said to them, “L’Ecosse est en danger.” And they said, “Oui, monsieur.” Il vous faut vous enrôler immédiatement, et dans un régiment “Highland”— Oui, monsieur.” And they all joined the Canadian Black Watch. The first thing they had to do was learn English. Now, to what identifiable and substantial linguistic community would they belong?
Senator Greene: The Black Watch.
Mr. Cowling: You would have to bring in an expert witness.
Senator Connolly (Ottawa West): I do not quite follow the meaning of clause 17. Clause 16 provides the right to give evidence, and so on, in either of the official languages in court. Clause I 7 states that nothing precludes the appropriate authority, which in the case of a rule of practice or a code of procedure I take to mean the province, from including rules respecting the giving of notice for the effectual execution and working of the provisions of either of those subclauses. Does that mean that the rule of practice, the code of procedure of a province, can nullify the provisions of subclauses 16(2) and (3)?
Mr. Cowling: By putting an impossible notice provision in?
Senator Connolly (Ottawa West): Yes. That would be an entrenched thing, if it were accepted, and it would “disentrench”, if that is the word, or give the authority to depart from the entrenching.
The Chairman: Very easily, yes.
Senator Forsey: Would the court be able to intervene there by virtue of lines 21 to 23, which read:
—pursuant to Jaw for the effectual execution and working of the provisions—
If it is an unreasonable notice, would they say anything about that?
Senator Connolly (Ottawa West): A province might feel that it could provide a rule or authorize a rule that would in effect wash out the provisions of subclauses 16(2) and (3).
Senator Greene: There is a very flagrant contradiction which we are flying full in the face of without apparent knowledge of the draftsmen, that being section 1 of the Ontario Judicature Act, which constitutes Ontario’s rules of practice. That section clearly and unequivocally says that the official language of the courts of Ontario shall be English, and they have not seen fit to amend that.
Piecing clauses 16 and 17 together, I take it that that section would still be valid. Clause 16 is therefore meaningless vis-à-vis Ontario, and yet we are putting it in. I do not see how we can allow that, if we are good draftsmen, which is supposed to be one of our functions here.
Mr. Cowling: That is true, senator. But as I said, it is not binding until Ontario adopts it.
The Chairman: Or it is deemed.
Senator Connolly (Ottawa West): What about clause 19, which says one can communicate in either language with a head office of, let’s say, a Crown corporation, or with any other principal office of such institution located within a area “in such manner as may be prescribed or authorized by the Parliament of Canada, that a substantial number of persons within the population use that language”? The determination of this for administrative purposes would be very difficult.
Mr. Cowling: I agree.
Senator Neiman: At line 36 they refer to “judicial, quasijudicial, or administrative body or Crown corporation”. That encompasses a wide body of administrative offices that really have never been defined, as far as I know.
Senator Connolly (Ottawa West): Yes, and how are they to be determined?
Mr. Cowling: We also have the federal Official Languages Act which is some indication. But subclause (2) deals with the provinces, leaving it open to the provinces, even if they adopt the Charter of Human Rights and Freedoms, to be very narrow in the way they define these questions, so as to make it virtually illusory.
The Chairman: We seem to be getting to the point where we are running down on answers as to what these matters mean and how they might be remedied, if there are deficiencies. Perhaps the best thing to do now would be to move on to our witnesses from the Department of .Justice and begin to ask them some of the questions which might help us clarify some of the meanings at least.
If there are no further questions or comments, I would like to thank our counsel, Mr. Cowling, for leading us through the bill.
Senator Connolly (Ottawa West): Let’s not leave the impression that we have exhausted our areas of question.
The Chairman: We may have exhausted Mr. Cowling, but we have not exhausted the areas of questioning. This has
merely been a preliminary run-through, and we will no doubt be dealing with these matters in great detail as we discuss them with our witnesses through our series of meetings.
Senator Connolly (Ottawa West): I wonder if I might ask one further question, Mr. Chairman. Clause 26 deals with rights not declared by the charter, including those of native people under the Royal Proclamation. Clause 26 states that those rights shall not be abridged or abrogated.
Section 93 of the British North America Act provides for denominational schools. Are those provisions repeated, or do they reappear in this bill, and if not, are those provisions continued?
Mr. Cowling: They appear at page 46, Senator Connolly. The form is changed. If you have the consolidation of the British North America Act, you will find section 93 on page 28. In Bill C-60 there is a reference back to the provisions of the BNA Act in the case of Ontario, Quebec, Nova Scotia, New Brunswick, British Columbia and Prince Edward Island. In the case of Manitoba the reference is to the provisions of the Manitoba Act. It is the same thing for Saskatchewan and Alberta. For Newfoundland, the reference is to Term 17 of the Terms of Union. The explanatory note says that clause 93 of the bill would consolidate and continue in force the present authority of the provinces in respect of education.
Senator Connolly (Ottawa West): So there cannot be any doubt about the fact that those provisions are not varied.
Mr. Cowling: No. It seems to be a straight reference to the existing provisions.
The Chairman: Are we finished with that discussion Senator Connolly?
Senator Connolly (Ottawa West): Yes, thank you, Mr. Chairman.
The Chairman: Again thank you, Mr. Cowling.
Ladies and gentlemen, we have with us Mr. Barry Strayer, the Assistant Deputy Minister, Public Law, Department of Justice. He has with him Miss Alice Desjardins, Director of Advisory and Research Services Section, Department of Justice; and Miss Edythe I. MacDonald, Special Counsel to the Minister of Justice.
It will be recalled that the basis on which we asked them to come was that we would not be discussing policy matters with them. We are discussing the bill as it is before us, and we are trying to clarify questions that have cropped up in the course of our discussion, as to what was intended, so that we do not follow garden paths which will not lead us anywhere, but will pursue what are indeed the true issues before us.
With that little bit of introduction and encouragement to you not to go to far astray in terms of policy, I will ask Mr. Strayer to begin. He has had an opportunity to read the
proceedings of the committee at our last meeting, and he may have some general comments before we get going with the more particular questioning and discussion.
Mr. B. L. Strayer, Assistant Deputy Minister, Public Law, Department of Justice: Thank you, Mr. Chairman. I would first like to say a brief word about my colleagues and their particular background in connection with this subject.
Miss MacDonald, to my immediate right, has had long experience in the drafting of legislation. She has also served as adviser to the Privy Council Office, and she is more conversant than almost anyone else in the department on the subject of orders in council, proclamations, and so on. She has had to put aside certain other activities in the department. She is normally special adviser on the status of women and family relations, which may seem to be at some distance from this subject, but she has put that aside for the moment in order to concentrate on constitutional matters.
Miss Alice Desjardins, to my far right, is Director of the Advisory and Research Services Section, which covers a multitude of activities. She is personally a specialist in constitutional matters, international law matters and human rights issues, and has made a distinct contribution to the development of this bill.
I should make it clear at the outset, as I suppose is obvious, that a bill this long and complex, dealing with so fundamental a subject, is not the product of any one author. It is a joint effort involving input from a variety of people at a variety of times. Indeed, if we had tried to bring before this committee all the people who had had some part in its development you would not have had room for them all I suppose, or at least it would have been very awkward. I say this partly by way of self-protection.
The group that you see before you has done its best to inform itself on all aspects of the bill. We are all, in our own way, involved very much in its development. We will do our best to assist the committee in any way we can. If, on occasion, you ask something that my colleagues and I do not have an immediate answer to, we will certainly undertake to provide the answer.
As the chairman said, we were invited to appear on the basis that we are going to be asked questions about the content of the bill, the meaning of the various clauses, and the drafting, but not to debate the policy of the bill. I mention that because I think it is important, in looking at a bill like this, to keep that distinction in mind.
With the ideas that are embraced in a bill of this size and fundamental importance, a bill which is as pervasive as this one is with respect to all of the institutions of government, with respect to all sorts of existing laws, has to be very complex, and there seems to be little way of avoiding that. The bill is innovative in various respects, and I would hope that the
innovations will be looked at for what they are, and not looked upon as error per se. They represent attempts to grapple with very difficult concepts at times. My colleagues and I will certainly profit from this discussion, as I am sure the government will in due course. The bill was published and distributed in a manner so that this kind of comment could best be made available to the government and could be fully digested. We therefore look forward to this opportunity.
I do not think I will say anything more of a general nature. If the committee wishes me to do so, and if the committee is going to deal at a certain point with the subject of the monarchy, I might offer a few introductory comments on that subject, which I think might be helpful by way of background. However, I am, of course, in the hands of the committee.
Senator Connolly (Ottawa West): Before you go into any specific areas, could we ask you how long this bill has been in its drafting. Do you know when the work started?
Mr. Strayer: I am not sure how far I should go into that. I can say that concentrated effort went into it starting more than a year ago. Some of the concepts, of course, come out of years of constitutional discussions.
Senator Connolly (Ottawa West): Of course.
Mr. Strayer: As you will have seen, all sorts of ideas have been borrowed from previous drafts, charters and proposals of one sort or another, so it was not all made out of whole cloth. Indeed, much of it was plagiarized from the British North America Act.
Senator Greene: Mr. Strayer, before you get into the specifics, I think it might be helpful to us-this is not policy-if you would let us know what were your terms of reference. We realize that normally a constitution would be drawn up by agreeing on the amending formula first. That is what the Victoria Charter and the Fulton-Favreau formula tried to do, but that was not possible. In querying you about specifics, I think it would be useful for us to know what were your general instructions-to draw a bill to do what?
Mr. Strayer: Weil, this gets into a delicate area. Perhaps the best way I can answer it is to say that our instructions were to do what was done, and you can judge accordingly.
Senator Connolly (Ottawa West): In other words, what you are saying is that the bill reflects, to the satisfaction of the people who make policy, the views that they gave you and the instructions they gave you for drafting?
Mr. Strayer: Yes, I suppose they can judge that better than I, but that was certainly the relationship, the normal relationship between those who are drafting and those who decide policy and such matters. It is not the product of a mad
drafsman who ran amok, as seems to have been suggested in some quarters.
Senator Aurgue: Mr. Chairman, I wonder if Mr. Strayer could give us some idea of the names of some others who had a large part in the drafting of this bill. We have the name of Mr. Thorson, I believe, and Mr. Robertson met with people from time to time. I think it would be useful if we were to know who were some of the others.
Mr. Strayer: I am sorry, senator, but I think I should leave that to the minister to discuss. Civil servants have a certain anonymity which I am not at liberty to violate. My colleagues and I are here because we are obviously involved in this, but I would suggest that you put that question to someone else.
Senator Argue: I have one further question, to which your answer may be the same. Could you give us some idea of how many meetings were held with the Cabinet? You said that they were held over a number of years, but can you tell us how many meetings, over what period, and what was the hurry-up feature?
Mr. Strayer: I don’t think I can answer that either. In fact I do not have any figures on that.
Senator Argue: You were yourself involved in many meetings.
Mr. Strayer: Yes, but not all of them by any means. The normal arrangement is that the officials attend certain cabinet committees, but not the cabinet. When I mentioned things having developed over a considerable period of time, I was referring back to the constitutional discussions which, of course, have been going on for 50 years or more on some of these points, and more immediately in the past starting in 1968 with a series of constitutional conferences, and all of the experience of those earlier features was taken into account in developing this bill.
Senator Lang: Just to help us in getting the most out of your evidence, did you specifically deal with, or were you specifically charged with, drafting any particular clauses of the bill; and if so, which ones were they?
Mr. Strayer: The answer to that is no. Drafting of legislation is regarded as a considerable specialty, which it is, and those of us who have not worked in those vineyards are not welcome there. I had certainly a significant part to play in some of the policy concepts. I am a very willing critic, and I read and re-read drafts and made suggestions for specific wording. I suppose I could say I had particular interest in the part dealing with the Charter of Human Rights and Freedoms, which is an area I have worked in at the legislative level in terms of the Canadian Human Rights Act which was recently passed.
Senator Lang: Could your colleagues identify any areas which they have had particularly under their charge?
Miss Edythe MacDonald, Q.C, Senior Counsel, Department of Justice: I suppose principally I have been working with Mr. Thorson in connection with the preparation of the draft of the bill and the explanatory notes for the bill here.
Senator Lang: But you do not have any particular area of expertise?
Miss MacDonald: I suppose if you were to ask me the areas I am most familiar with, I would have to say that it would be those dealing with government organization, and the areas dealing with the executive, the Governor General and that sort of thing.
Miss Alice Desjardins, Q.C., Director, Advisory and Research Services Section: My name is Alice Desjardins. I have been mainly called upon to make general remarks concerning the bill as a whole, in order to ascertain for instance whether all the provisions were related or whether some element had not been left out.
The Chairman: Thank you, Miss.
Senator Flynn: Has any element been left out?
Miss Desjardins: Senator, I am afraid you will have to find out for yourself, just as we have.
The Chairman: If you have finished with the early general questions and comments, our counsel has developed a list of questions which he feels arise from our earlier discussions. That list has been distributed. That is not intended, of course, to limit you in any way, but it is something which draws to your attention matters which have come up during our discussion and which you may wish to use as a guide in your own questioning. Furthermore, I think we might ask our counsel to lead off in each of the general sections to try to ensure that we cover the essential issues. Again, that is not intended in any way to limit your questioning; it is intended simply to be of assistance because undoubtedly supplementary questions will arise out of the questions which counsel will ask.
Senator Marshall: Before we go on to that, Mr. Chairman, did Mr. Strayer suggest that he was particularly involved with some features?
Mr. Strayer: No, I was just suggesting that if at some point the questioning turned to matters of the monarchy and the role of the Government General, it might be helpful if you were to allow me to make some one or two introductory comments about that. But I am entirely in your hands.
The Chairman: I would be inclined to leave that until we get to that particular section. As a matter of fact, I am beginning to wonder, since it is 12.25, if we should not wait until after lunch to begin. Once we get started on this, we may never have any lunch. Is it agreed that we adjourn until 2 o’clock?
Senator Yuzyk: May I ask a question first? What part, if any, did the recommendations of the joint parliamentary committee that were brought down in 1972 play in the drafting of this legislation?
Mr. Strayer: They were considered carefully along with such things as the Victoria Charter, the Fulton-Favreau formula and a variety of other things. They were looked at carefully. I think we can on occasion explain where in the joint committee’s recommendations certain ideas were drawn from.
Senator Yuzyk: I thought that would be important for us, because we are making reference to those recommendations.
The Chairman: Honourable senators, we will adjourn until 2 o’clock.
The committee adjourned.
The committee resumed at 2 p.m.
The Chairman: Honourable senators, I think we will follow the procedure we talked about this morning. I believe Mr. Strayer has a list of questions, as have the members of the committee, who will no doubt jump in whenever they feel so inclined. First, however, I will ask our counsel to begin his questions, arising from which there will no doubt be supplementaries. Mr. Cowling, would you like to start?
Mr. Cowling: Mr. Chairman, my first question is of a general nature, and deals, really, with the mechanics of how this bill is to be brought into operation. The question may smack of policy a little bit, and if it does I hope the witnesses can respond to it in its non-policy aspects.
What strikes me about this bill is that it purports, eventually, to become the Constitution and to replace the BNA Act. It is an act of the Parliament of Canada, whereas the BNA Act is, in a sense, a neutral sort of document, being neither an act of the Parliament of Canada, nor of any other legislature, but an act of the United Kingdom Parliament. Yet Bill C-60 will contain, among other things, the very sections 91 and 92 of the BNA Act which distribute the legislative powers as between Parliament and the provinces. It seems to me that it is a little amomalous that an act of Parliament, which is one of the bodies that receives these powers, will be the Constitution of the country. In other words, it is not a neutral document in the same sense as the BNA Act is, or even in the sense that the Constitution of the United States is. It will be an act of Parliament, and it is in that act that the division of powers is derived. This almost suggests that being an act of Parliament, Parliament can make any amendments to it that it wants, in the future.
I realize that this raises the question of the amending formula, and so on, but the difficulty with this bill is that we do not have before us any proposal for such an amending formula. I address my question generally to the witness.
The Chairman: Perhaps Mr. Strayer will take the lead and reply to the question.
Mr. Strayer: I agree it is a fundamental point. I should say at the outset that in concept this does not completely alter our existing situation. We have at the moment a BNA Act which was originally enacted entirely by the United Kingdom Parliament. There are parts of that act which are amendable directly or indirectly by provinces, and parts which are amendable by the Parliament of Canada; and there are pieces of the BNA Act now which have their origins in the laws of the Parliament of Canada, such as the present system of distribution of constituencies in the House of Commons, or the addition of senators coming from the Territories. That sort of thing. So, at the moment we do not have a really pure system, because we have a document, the BNA Act, which is variable in some respects by ‘act of the Parliament of Canada and in some respects by the provinces, and, of course, in some very important aspects, by the United Kingdom Parliament.
Moving to the proposal, the proposal is not to enact sections 91 and 92 or the other designated provisions. The bill, as you see it, contains versions of those, in some cases taken completely verbatim from the existing BNA Act, and, in other cases, modifications have been introduced. But those, of course, are not to be enacted by Parliament. They are put in to demonstrate what the total Constitution would look like, and at least to provide a basis for the adoption of a complete Constitution with internal consistency if the processes of constitutional amendment are used to adopt those designated provisions.
Parliament, by passing the bill, would not be enacting those designated provisions. It would be deemed to have passed resolutions approving of amendments to the effect of those designated provisions.
What happens after that all depends on the amending procedure which obtains. In the present circumstance, where we have no other amending procedure, the conventions of the Constitution would indicate that there would be consultation with the provinces and that there would be the forwarding of a joint resolution, assuming there was sufficient agreement, to Westminster and adoption of those sections by Westminster in the usual way. So those sections, if they were adopted in that way, would then become part of the Canadian Constitution, having as their legal basis an enactment of the United Kingdom Parliament.
Senator Connolly (Ottawa-West): Ultimately, if this bill were to go forward in its present form, the Constitution of Canada would then, in fact, be a statute of the U.K. Parliament.
Mr. Strayer: Just those sections which are designated sections. Those could be enacted directly by the United Kingdom
Parliament, or conceivably the United Kingdom Parliament could authorize the Parliament of Canada to enact those, but to make them amendable only on certain conditions.
If you go back to the Fulton-Favreau formula, which was worked out from 1960 to 1965, the process envisaged there was that all amendments to the Constitution of Canada in the future would be effected by the Parliament of Canada; but the Parliament of Canada could only act with respect to certain categories of amendments after certain conditions had been met—for example, if it was a matter affecting the distribution of powers that all provincial legislatures must have approved that amendment.
That is one possibility, that what is eventually done by the United Kingdom Parliament, assuming some agreement in Canada, could be either a simple further amendment such as we have had in the past—we have had 22 or 23 amendments by the United Kingdom Parliament—and that would assume a continuation of the amendment process by the United Kingdom Parliament; and the Parliament of Canada could not change those designated provisions without it being done by the United Kingdom Parliament.
One hopes, and the government proposes, that in the next year or two an amendment procedure, and a patriation procedure, will be developed, so that it could be that by the time those designated provisions are adopted in the United Kingdom it would be part of a package of development or changes which would bring about patriation of the Constitution and a new amending formula in Canada. But certainly it is the assumption that whatever that new amending formula is, it will not permit Parliament to amend unilaterally sections 91 and 92 any more than they can do today.
Mr. Cowling: But in the case of sections 91 and 92, where there is really no change being made in Bill C-60—
Mr. Strayer: Just minor ones.
Mr. Cowling: Just minor ones. What is the U.K. Parliament going to do about that? Are they not going to say, “You have sections 91 and 92 now in a perfectly good statute. What further action can we take? Do you want us to pass an act of the U.K. Parliament saying that certain provisions of an act of the Parliament of Canada which appear in the schedule to this U.K. act are hereby approved for insertion in that act of Parliament?” I am trying to envisage what the U.K. statute will say, if that is the amending procedure to which we shall have to resort.
Mr. Strayer: It could be fairly simple, and simply include in a schedule all of the text of the designated provisions and say that these shall henceforth be the law of Canada.
Mr. Cowling: They are now.
Mr. Strayer: Yes. There are minor changes in 91 and 92. In 91 there is a change in the opening words with respect to the Queen vis-à-vis the Governor General.
Senator Forsey: Not so minor.
Mr. Strayer: There is a change in clause 91 (1) in the reference to the amending powers of Parliament. Again in clause 92(1) there is reference to the amending powers of the provincial legislatures. But I do not suppose there is a great deal in it one way or the other, if you only ask the United Kingdom to adopt those particular clauses which represent changes. The only thing is that we would probably be repealing the remainder of the BNA Act at about that time. Therefore, those sections would disappear, and rather than see them disappear, which would be rather disastrous, we would presumably want to have them re-enacted or continued in the form in which they are set out in the bill.
Senator Fournier (de Lanaudière): Is that bill a new Constitution or an amendment to the British North America Act?
Miss MacDonald: It is hard to say that it is a completely new Constitution, but it would replace, to a large extent, the British North America Act.
Senator Neiman: Look at the title.
Senator Fournier (de Lanaudière): So long as Canada is not the absolute master of its Constitution, I suppose no one can say that we are a sovereign country.
Mr. Strayer: In form that is certainly a problem.
Senator Smith (Colchester): Mr. Chairman, I am concerned about understanding clearly those words in clause 125, particularly those on page 57, which relate to:
—shall be deemed to have approved of resolutions for the amendment of the Constitution of Canada—
Is the effect of those intended to be that once the Parliament of Canada passes a bill in this form, it shall have been deemed, as of then, to have done everything that would have to be done by way of resolutions and so on in the future; so the matter does not come before Parliament again, but this is the time in which it is deemed to have been passed and put on the shelf ready for use whenever required?
Mr. Strayer: That is correct, senator. That part must be read in association with the words starting at about line 18 on page 57, where it says:
—they may lawfully be so taken up and dealt with in accordance with the procedure for such amendment then recognized by accepted usage, if there is then no procedure for that purpose expressly provided for by the Constitution of Canada, or in accordance with the procedure for—
At the moment we have no specific procedure laid down in the Constitution of Canada, so if this were to be adopted in the near future, before we have a formal amendment procedure written down, those resolutions would have to be dealt with in
accordance with the procedure for such amendments then recognized by accepted usage, which would get one into consultation with the provinces, which has been followed with respect to amendments on the distribution of powers.
Senator Smith (Colchester): I do not quite follow it yet. From my point of view-and this is only my point of view, not anyone else’s-this is an attempt to say that once the Parliament of Canada enacts Bill C-60 in a form similar to this, it is then not open to say that it has not done it, or to undo it, or to otherwise deal with it. It states it “shall be deemed to have approved of resolutions for the amendment of the Constitution of Canada in the form and to the effect of each of those provisions,” and so on.
Mr. Strayer: One must look also at clause 126, which makes it quite clear that it is always open to Parliament to change its resolutions. It is assumed that it is unlikely that the provinces will agree to entrench all of these provisions in exactly their present form. If they do agree—and certainly they have been designed in the hope that they will meet with the approval of the provinces—then the matter can proceed on the basis of these deemed resolutions.
If, however, during what is known as Phase II of the constitutional review exercise, which is to involve discussions on the distribution of powers, if during that process quite a different distribution of powers is agreed upon and some of these other designated provisions are not agreed on and something put in their place, it will then be open to Parliament to consider those changes and pass new resolutions, if it sees fit.
Senator Marshall: Mr. Chairman, I am interested in the fact that Mr. Strayer wanted to refer to the monarchy, and in particular the view that a lot of people in Canada wanted the proposed changes in connection with the monarchy. I am wondering what terms of reference or what rationalization was used in coming up with the proposed changes regarding the monarchy.
The Chairman: Senator Marshall, I would like to leave that question until we get on to the specific area of the monarchy and the Governor General. If possible, I would like to deal with one line of questioning at a time.
Mr. Cowling: I wonder if I might follow up on Senator Smith’s question, Mr. Chairman.
It has been said that the U.K. Parliament would like to get rid of this business of having to amend the Canadian Constitution. Is there a danger that the U.K. Parliament, once this bill is passed containing these deeming provisions, might take the position that that is all it needs to go ahead?
They presumably know what laws are being passed in Canada. What process is going to intervene between the passage of this bill, which states that the resolutions are deemed to have been enacted, and action by the U.K. Parliament? Is someone going to say to the responsible person in the U.K. Parliament, “Don’t move ahead yet, please, because
although we have everything ready, we still have some internal things to do before we give you the green light.”
Mr. Strayer: I think it is safe to say that U.K. parliamentarians are not going to be reading our newspapers and immediately clutch this thing and run away and enact it. Requests for enactment are submitted through the Governor General on the advice of the government. Therefore, the government will have to make a judgment at some point as to the appropriate occasion on which to submit such a request.
As I said, the clause under discussion refers to accepted usage, in the matter of amendments to the distribution of powers, or other matters directly affecting the provinces, such as the Constitution, means that there would be consultation. When there have been changes in the distribution of powers in the past, agreement has been required before any joint resolutions have been forwarded by the Government of Canada to the Parliament of the United Kingdom.
There is the famous incident concerning the amendment to the Unemployment Insurance Act. I am sure Senator Forsey can recount the details of this better than I can, but, as I recall it, all of the provinces but Alberta had agreed to the amendment. Then Premier Aberhart sent a telegram saying he was no longer going to oppose the amendment, and I think Mr. King was in the House of Commons the next day with his resolution and it was sent off.
Mr. Cowling: At least, the provincial consultation in that case came before. What I see happening here is that although clauses 91 and 92 will not be enacted as and when this bill is adopted, the resolutions will be deemed to have been enacted, and that could occur, it seems to me, if what we read in the explanatory material is correct, either before or right in the middle of these consultations that you speak of. So, it seems to me that this is to some extent holding a club over the head of the provinces while consultation is going on.
Mr. Strayer: I think that is probably a question you should put to the ministers.
Mr. Cowling: But is my interpretation correct?
Mr. Strayer: It all depends on how one interprets “accepted usage.” I did not think anyone these days would interpret “accepted usage” as permitting the Government of Canada to request an amendment to the distribution of powers that did not have either unanimous or virtually unanimous agreement of the provinces. On the three occasions when there have been amendments, there has been unanimous agreement.
I think it is to that practice that the words “accepted usage” apply. Whether some other commitment might be forthcoming from the government is not, I do not think, a question which should be put to me.
Senator Forsey: I won’t follow the same line of questioning. I think there are one or two points still to be brought out. Incidentally, on the occasion when Mr. Aberhart finally said
that he was not going to oppose any further the unemployment insurance amendment, you will perhaps recall, Dr. Strayer, that Mr. King the next day, in a characteristic statement, said that this unfortunately removed from consideration the question of whether it would be possible to go ahead without unanimous consent—one of the triumphs of Mr. King’s ingenuity.
The second thing, the much more important thing is, is accepted usage clear? Consultation, yes—and you yourself said it would be necessary, if I understood you correctly, to have unanimous or virtually unanimous consent. Well, what does “virtually” mean?
I put it in the extreme case sometimes when I am arguing this. I have said if you had every province except, let’s say, Prince Edward Island saying, “This is splendid,” and Prince Edward Island saying “No,” my guess—and I think it is only a guess—is that the Parliament of Canada would probably go ahead anyway. If it was my native province of Newfoundland, probably the same thing, or any one of the Atlantic provinces. If it were Manitoba or Saskatchewan, the same thing.
If Alberta alone objected, I am not quite so sure. If British Columbia alone objected, I am not quite so sure. As far as the province of Quebec is concerned, we have had the suggestion, at least from the Prime Minister, if I understood him correctly, a year or so ago that in those circumstances he might be prepared to go ahead if the government of Quebec objected—presumably on the basis of some indication that the people of Quebec felt differently from the government.
I am not at all sure what the accepted usage actually is. Professor Lederman, as you know, has laid it down twice in print that there must be unanimous consent, and then he has shifted and said, “Well, virtually.” —”What, never?” “Well, hardly ever.” “What, never?” “No, hardly ever.” I am not at all sure what the accepted usage is.
The next question I want to ask is, doesn’t this deeming provision—and it occurs in connection with another matter as well as in clause 125—really say that once this has been passed by the Parliament of Canada it shall be deemed to have been resolutioned, and there is nothing in there until you get to the very end, until you get on to this “accepted usage” business, to prevent the government from going before Parliament and saying, “Well, we have consulted the provinces and one province objects, but we don’t think that is sufficient.”? Suppose it is the Province of Quebec: “All the Quebec members of the House of Commons think it is splendid. All the Quebec senators think it is splendid. The present government of Quebec does not like it, but it got only 41 per cent of the popular vote. We think we have got evidence of the support of the people of Quebec and we are going to go ahead.” What is to prevent this then from coming into force from and after the enactment of this measure?
Mr. Strayer: You are positing a majority in the House of Commons to support the action of the government, are you?
Senator Forsey: Yes, and the Senate.
Mr. Strayer: I assume that the action by the government in forwarding such a request could become a matter of confidence, for example. To get back to your question of accepted usage, I agree with you that one can debate what is accepted usage. A previous government, in 1965, in a publication put out over the name of the then Minister of Justice, Mr. Favreau, stated that unanimity was required, but I think that has been the subject of some debate since. Admittedly, people take different views on this. I think it is safe to say that the accepted usage does not include unilateral requests on matters directly affecting the provinces. One can debate whether in particular circumstances the consent of nine provinces, or presumably even of eight provinces, might be accepted as being sufficient; that is a matter for political judgment more than mine. I would find it hard to believe that accepted usage would embrace no consent of any province or the opposition of a number of provinces representing a very large percentage of the population. I think this, again, is a question that should be directed to the ministers.
You mentioned the Prime Minister’s statement with respect to the possibility of seeking new amendments unilaterally. As I recall it, that was in the context of seeking unilaterally patriation of the amendment procedure.
Senator Forsey: Yes.
Mr. Strayer: The proposal had within it an amendment procedure which would give the provinces the veto over any subsequent amendments. What he was proposing was that if we could not come to some agreement within Canada, it could be conceivable for him to ask the Parliament of Canada to ask the United Kingdom Parliament to put in a measure bringing about patriation and providing for Canada an amending procedure which would not permit any further amendments without the unanimous consent of the provinces. It was really in that context that he made that proposal. That would have put everybody back where they were, or perhaps even in a better position. Who knows?
Senator Forsey: It still looks a bit like a breach in the theory of unanimous consent being absolutely necessary. After all, the patriation procedure is no bagatelle.
Senator Godfrey: Two weeks ago I asked our counsel to find this out. In petitions in the past for amending the Constitution, has there been any mention in the official document that goes to Westminster of the fact that the consent of the provinces has been obtained?
Mr. Strayer: I am satisfied there has not been. I have seen resolutions and they refer, of course, to the approval by the Senate and House of Commons, but they do not say anything about the provinces.
Senator Godfrey: They would be very careful not to enshrine that.
Mr. Strayer: I should say that when the question was raised in the British house about two years ago, one of the Secretaries of State, of whom they have several, indicated that it was normal procedure for them to act on a request of the Parliament of Canada. That is all he said.
The Chairman: Senator Forsey, did you get the answers to both your questions?
Senator Forsey: Yes, thank you.
Senator Lang: Still on the same point, I should like to make this absolutely crystal clear. May I give a theoretical example under clause 126? Assuming this bill to have been passed, the federal executive then goes out to try to seek unanimous consent for the adoption of the designated provisions and finds that in order to get such unanimous consent it has to make a transfer to the provinces of some head of federal jurisdiction under section 91; it says, “Fine, we are prepared to do that in order to get unanimous consent.” Unanimous consent is achieved. Is there thereafter any obligation for the federal executive to go back to Parliament, our own Parliament?
Mr. Strayer: You are assuming they have agreed to some changes with the provinces and they have reached unanimous agreement with the provinces on some changes. Clause 126 makes it clear, of course, that these deemed resolutions can be changed. Of course, given our present amending procedure it would not be proper for the government to ask the United Kindgom to pass amendments without a joint resolution of the two houses of the Canadian Parliament. If the deemed resolutions have, in effect, been overtaken by different provisions, then the government, in order to use the existing amending procedures, would have to come back to Parliament and get joint resolutions of the Senate and House of Commons to approve those changed provisions, the ones agreed on with the provinces.
Senator Lang: How do you read that out of clause 126? I am not talking about deemed resolutions. I am talking about deemed approvals. Does that clause not mean that any subsequent amendments affecting the federal power are deemed to have been approved by Parliament? In other words, there is no further necessity for the executive to go back to Parliament?
Mr. Strayer: Not if the provisions go in the form in which they are within this bill. If they are changed in the meantime on matters involving the provinces, if they are changed as a result of discussion with the provinces and there is agreement on some different provisions, let us say some drastic changes in clauses 9I and 92, then the deemed approval of resolutions of the existing designated clauses would become irrelevant, because that is not what you want to get adopted by the United Kingdom Parliament. The executive would have to come back to Parliament to pass new resolutions embodying these agreed upon provisions, the ones agreed upon with the provinces.
Senator Lang: With respect, I cannot read that out of clauses 125 and 126.
Mr. Strayer: Clause 126 means that Parliament is not precluded from changing the resolutions.
Senator Lang: It does not say Parliament. It says:
Nothing … shall be construed as precluding the amendment of any designated provision … before such time as any resolution with respect thereto … is taken up and dealt with as provided in that section.
That section has got a deemed resolution in it.
Mr. Strayer: But it would be constitutionally improper for the government to go to Westminster with new changes that had not been approved by Parliament.
Senator Lang: It might be improper, but it might be legal.
Mr. Strayer: It is today. In the same sense that it may be legal today, nobody knows what the restrictions are today absolutely certainly. On the same thesis, the executive could ask tomorrow for the United Kingdom Parliament to repeal the whole BNA Act, or something like that. However, we would say that that was constitutionally improper because there were no resolutions passed by the Parliament of Canada. In that respect this does not change anything. If the system we presently use continues, then it continues on the same basis as before and Parliament must approve whatever amendments are requested from the United Kingdom.
Senator Connolly (Ottawa West): Mr. Strayer, what you are saying, I take it, in layman’s language, is that while clause 125 deems, if this bill is passed, that this be the view of the federal Parliament, that can be overridden by the federal Parliament getting new resolutions amending what has deemed to have been approved.
Senator Flynn: If it is deemed to have been approved and the U.K. Parliament passes legislaton, let us say, to continue with sections 91 and 92, subsequent amendments would have to go again to the United Kingdom Parliament. There would be no patriation of the Constitution in those cases.
Senator Connolly (Ottawa West): When do you stop going to the U.K. Parliament?
Mr. Strayer: When there is agreement on amendment and patriation, and the government has stated in its document “A Time for Action” that it continues to hope that very early progress can be made on an amending procedure and on patriation. But it is always a chicken-and-egg process. In times past, when we have started out trying to get an amending procedure, people have said, “You should be looking at the substance of the Constitution”, and then in 1968 to 1971 round of discussions there was an attempt to look at the substance and eventually a number of premiers said, “We cannot go on like this indefinitely. We should be looking at the amending and patriation process.” One can always argue about which things should be done first, and the government, I think, is suggesting that while this bill is being considered and
while further amendments to the Constitution are being discussed with the provinces, at the same time we should be pursuing every effort to get an agreement on an amending procedure and on patriation.
Senator Grosart: Could I ask if the 1949 assumption by the federal Parliament, that by joint address one could obtain amendment to the Constitution, was in accordance with accepted usage at that time?
Mr. Strayer: In that particular respect I suppose there was some debate as to what was accepted usage. Certainly, there was a great deal of disagreement about it, and it was, as you will recall, largely as a result of that that federal-provincial conferences started in 1950 to try to reach agreement on an amending procedure, because it was suddenly realized that this kind of thing could happen. Since that time there have been two other amendments with regard to the distribution of powers—the amendment in 1951 concerning old age pensions, which was modified again in 1964—and in both cases they were the subject of discussion and agreement with the provinces. But, admittedly, the 1949 incident is somewhat debatable.
Senator Forsey: Was there a third one about the judges?
Mr. Strayer: Yes, in 1960. But I was speaking only of those concerned with the distribution of powers.
Senator Grosart: Would you say it was not in accordance with accepted usage at the time? Surely, you can say yes or no to that? I say that in view of the fact that many of the provinces objected formally. Could you say that it was in accordance with accepted usage at that time; and if so, what was the measure or degree of acceptance, if you say there was acceptance? Or even if you were to say that there might have been acceptance, or if you were to say that there was a dispute as to whether it was accepted usage or not. I am, of course, suggesting that there is no possibility that it was in accordance with accepted usage at that time.
Mr. Strayer: I would say, I think, that it was very much open to debate.
Senator Fournier (de Lanaudière): When we pass a resolution to amend the Constitution, is the British Parliament bound by that resolution? Are they bound to accept it according to constitutional practice, or can they refuse it, or can they ignore it?
Mr. Strayer: I think the convention is clearly that they will accept any resolutions submitted to them. There was a time when they used to like to revise some of the drafting, but I think that in recent decades they have accepted the amendments as they were proposed without any changes whatsoever. That is the convention. But the converse of that is that they will not enact any amendments without being asked to do so.
Senator Smith (Colchester): I want to return, if I might, to this phrase “shall be deemed to have been approved with resolutions” and so on, and to ascertain whether I am right in assuming that Mr. Strayer has now said in effect that this deeming of resolutions to have been passed will be of use only if the resolution put forward to the United Kingdom is exactly the same as the contents of this bill.
Mr. Strayer: Yes, that is what I am saying.
Senator Smith (Colchester): What would happen if there were not there about deeming resolutions to have been approved?
Mr. Strayer: The advantage to putting them in here is that it makes the essential elements of the Constitution complete and in one document, and it allows Parliament to consider the interconnection between the distribution of powers and certain other things with provisions which are not designated and which Parliament can adopt-for example, the opening words of section 91 which refer to the Governor General instead of the Queen. So it puts the whole proposal before Parliament and enables Parliament to know what it is approving at that point. Of course, it would always be open to Parliament to change this resolution at a later time whether section 126 is there or not. But it is saying that by this one process we will debate the whole Constitution, or, at least, all the major elements of it, and we will decide whether we want to approve it or not. Some of those things that we enact will become law and some of those things which require opting in by the provinces will become effective vis-a-vis the provinces when they opt in, and other things which require an amendment from the United Kingdom can be pursued on the basis of these resolutions which Parliament is deemed to have passed.
The Chairman: Perhaps Mr. Cowling could proceed now.
Mr. Cowling: Mr. Strayer, I had always thought patriation meant developing an amending formula in Canada whereby the Constitution could be amended in Canada without recourse to the United Kingdom. Now you have used side by side the word “patriation” and the words “amending formula,” indicating that in your lexicon we are speaking of two different things. Do I understand you to mean, when you say “patriation”, that it is a question of getting the Constitution into a Canadian document as opposed to a U.K. document, and that the development of an amending formula is something else? In other words, if agreement cannot be reached with the provinces on how to change section 91 or 92-and we all know that that is really the burning issue as far as constitutional change is concerned-then when the federal government is satisfied that agreement cannot be reached, or cannot be reached fast enough, it will nevertheless use the “deeming” provisions in section 125 to have the U.K. Parliament take some kind of action which will put section 91 and section 92 of the BNA Act, as is, in the Canadian document, namely an act of Parliament, and they will say to the provinces, “We really do not need your consent to do that, because sections 91 and 92 have not been changed. All we are doing is putting them in an act of Parliament.” Is that a fair summary?
Mr. Strayer: Well, just on the question of my use of the term “patriation,” I would admit that that is not a term of science. Indeed, it is perhaps a peculiarly Canadian word, because, when I was involved in discussions with the British officials in 1971 concerning patriation, they did not understand what I was talking about at first. They said, “Do you mean repatriation?” I said, “No, it cannot be repatriated because it has not been here yet.”
So it is not a term of art. It means at the very least, I think, a termination of the authority of the United Kingdom Parliament to legislate for Canada. Beyond that it could mean having our own amending procedure, which seems to be almost inextricably linked with patriation, because otherwise we have a lacuna in our Constitution, having things that cannot be amended.
Mr. Cowling: You mean to say that it is possible we may reach the point where the U.K. Parliament will have nothing further to do with amendments, and yet we still have not developed an amending formula in Canada. Is that envisaged as a possibility in this process?
Mr. Strayer: It is theoretically possible. I have not heard anyone suggesting it seriously. It is possible to have constitutions that have no amending procedures. The German Constitution has certain clauses which cannot be amended by anyone—at least, any temporal power.
The Chairman: Hitler.
Mr. Strayer: We could, conceivably, have such a constitution. But I do not think most people would accept that, and I have not heard that seriously suggested in recent times. There were suggestions from all sorts of corridors at one time about it, but I have not seen that as a serious possibility recently. Certainly, the government’s position is that we should be seeking to get an amending formula along with patriation.
On your question about sections 91 and 92 and whether the government could import sections 91 and 92 into the Canadian act, conceivably it could, although there are changes there in section 92.1 which would concern the provinces, and then, of course, if you go beyond section 91 and 92 and look at the other designated provisions, there are a number of those, including provisions about the provincial constitutions, which it would be unthinkable to go ahead with without consulting the provinces.
If one posits a responsible procedure for amending the Constitution along the lines we have lived with for many decades in this country, then I think we have to assume that what you suggest would not happen, that even a slight touching of section 92 would require the approval of the provinces.
Senator Forsey: I am a little surprised by what you have just said in response to Mr. Cowling’s first question, because it seemed to me that in response to an earlier question of mine you said that this is precisely what the Prime Minister had in
mind as a possibility, a patriation formula, which, to put it bluntly, would take the British North America Act out of Westminster but would leave it in limbo. When there was that question of unilateral action, what he was proposing was that the thing should be taken out of Westminster but that nothing further would happen without the unanimous consent of the provinces. That seems to be patriation without the amending formula.
Mr. Strayer: That is an amending formula. You may not like it, but it is ail amending formula.
Mr. Fulton suggested the same thing in 1960. He said we should have simple agreement to patriate the Constitution with unanimity as the rule for amendments. That was rejected at that time by the provinces.
The Prime Minister was suggesting the same sort of thing. He had two or three different options for amending formulas, including the possibility that they would use this unanimity rule in order to achieve a better or more flexible amending formula.
Senator Forsey: “Faith is the substance of things hoped for and the evidence of things not seen.”
Mr. Strayer: In any event, he linked the two things together, and was not suggesting that we bring home the Constitution and leave it unamendable.
Mr. Cowling: The way to get the amending formula into law, into legal form, in that case—and presumably the only way it could occur—would be by some kind of contractual arrangement between Parliament and the provinces, because the U.K. would no longer be able to do it for you. Clearly, the Parliament of Canada could not or should not do it on its own. You need some authority or some basis for doing it in a way so as to give birth to it in some manner by which the courts will recognize it and enforce it.
Mr. Strayer: To give it legal legitimacy you would, I think, want to have it underwritten by the United Kingdom Parliament, because they are the source of constitutional law-making for us.
One can look at the model which was proposed at the time of the Victoria Conference. The proposal there was that the constitutional amendments in the future would be made after resolutions had been passed by Parliament and the requisite number of provinces. They woul be formalized by a proclamation of the Governor General. The first place where this process was to be applied was the adoption of the Victoria Charter itself. Indeed, we went to London and worked out an arrangement with the British ministers and officials on this. The effect of that would have been that the U.K. would have passed a small act which would have recognized the validity of the Victoria Charter. What would have been involved by the procedure contemplated at that time was that the United Kingdom Parliament would pass a short act that would recognize the legality and legitimacy of what was called the Canadian Constitutional Charter. That was the Victoria Charter. That charter included within its four corners an amending procedure, and, therefore, the United Kingdom would be
giving its blessing to this new procedure which in the future would involve amendments being made, and, in fact, the whole Constitution being revised, on the basis of the approval of the right number of provincial legislatures and the approval of the Parliament of Canada followed by the proclamation by the Governor General, who would, in effect, be saying, “All of the requisite things have been done and this is the new Constitution.” It would not be an act of Parliament in that situation.
Along with that, the British, assuming that these proposals commended themselves to the House of Commons and the House of Lords, would have repealed, as part of the law of Britain, the BNA Act and a lot of other statutes, and they would provide that no future British law should apply to Canada. That would be the patriation package, but bringing about the adoption of a Canadian amending formula.
So that is another possibility that one can imagine coming out of future discussions on constitutional amendment and on patriation.
Senator Flynn: If section 125 were to be implemented, you could have the whole act, with perhaps the exception of the charter of human rights, come into force, but the situation so far as the U.K. Parliament is concerned would remain the same and therefore no amendment to the provisions of this act, which are without the authority of the federal Parliament—and I am not discussing which they are—could be made. No amendment could be made without again going to the United Kingdom Parliament by way of resolution. Therefore, the Parliament of Canada would be able to hold the provinces in the status quo until a resolution was sent to the United Kingdom Parliament.
Mr. Strayer: That is the situation now, yes.
Senator Flynn: And it could turn out to be this way.
Mr. Strayer: It could continue that way, yes.
Section 125 contemplates two possible procedures. The deemed resolutions could be regarded as the necessary joint resolutions for asking the United Kingdom to amend the Constitution.
Senator Flynn: Yes, as the act is.
Mr. Strayer: Yes, or they could do so within the kind of formula that was devised at Victoria, which also called for resolutions of both houses.
Senator Flynn: That is another step entirely; but in the case of this bill you could have the whole bill passed and implemented as a deemed resolution; and then, when you wanted to amend part of the Constitution relating to provincial powers, you would have to go to the United Kingdom Parliament again by way of resolution of the Parliament of Canada and not by the legislatures themselves.
Mr. Strayer: This provision changes nothing with respect to the amending formula. It changes nothing by itself.
Senator Williams: Once Canada is the ruler of its own house and its own destiny as a result of passing Bill C-60, what
will prevent Canada, in the future, from including sections 91 and 92 of the British North America Act?
Secondly, what effect will this new Constitution have on the Indian people of Canada?
Mr. Strayer: With regard to the first question, it would depend on whether you were talking about this act being adopted in its entirety, including sections like 91 and 92. If you are talking about that, we are assuming that we have used the amending process, and 91 and 92 have been made part of the constitution. of Canada. In that case, in the absence of any other amending procedure, those could not be changed without further requests to the United Kingdom parliament. If the act is passed simply with these amending resolutions, and they are never acted upon, 91 and 92 are not affected, but the fact is, the Parliament of Canada has an amending power under section 91, head 1, but there are exceptions in that head, and they prevent Parliament from dealing with matters that affect the powers of the provinces. So Parliament is not going to be any better off after this act is passed, whether with or without the designated provisions, than it is now. It is still not going to have the power to deal with section 91 or 92.
On the second question, there is, of course, a specific reference in the bill to the proclamation of 1763. This is in clause 26. That is, I think, designed to preserve the status quo and to avoid any implication that whatever rights may exist under that proclamation are being affected by this bill. Clause 26 was intended to preserve the status quo and not detract from rights which might have existed under that proclamation.
There are, of course, some particular provisions in the charter of human rights which would be of interest and concern to native people. Beyond that, if the question is what role will the native people have in the development of the constitution, I think that is a question that could be best put to the Ministers.
Senator Williams: I have a lot of misgivings about a lot of things that have been said here today. There has been reference, for instance, to the Drybones case. In that case they had hung their hats on the Bill of Rights. I guess in British Columbia, in the Baker case, they hung their hats on the Bill of Rights also, but the presiding judge simply told them, and made the decision, that the Indian Act supersedes the Bill of Rights. Of course, they lost the case.
Mr. Strayer: Which case was that? What was the name of the case?
Senator Williams: Baker. I forget the name of the other fellow.
Senator Forsey: Was that the Nisgha case?
Senator Williams: No. The Nisgha case was in a class by itself.
Senator Forsey: That was a bad one, too.
Mr. Strayer: Without being able to speak to that particular case, I think we all recognize that there have been problems in
the relationship between the Indian Act and the Canadian Bill of Rights.
Senator Williams: I am glad you said that.
Mr. Strayer: The Lavell case took a very narrow view of the application of the Canadian Bill of Rights to the Indian Act. One of the things which we hope we have achieved in this draft with respect to the Charter of Human Rights is to overcome the problem that rights described in here would be interpreted as being only those rights that existed at the point of enactment. of the charter. This has been one of the problems with the Canadian Bill of Rights, that in many cases-admittedly the cases have not been entirely consistent-they have said that the rights and freedoms as they were known in 1960, at the time of the adoption of the Bill of Rights, are the kinds of rights and freedoms which are being talked about, and that the Indian Act long predated the Canadian Bill of Rights and therefore in its application to native people or status Indians covered by the Indian Act, the provisions of the Bill of Rights have to be read as being restricted in that way. We have used words at the beginning of clauses 6 and 7, for example, where it says that “every individual shall enjoy and continue to enjoy”. We think we have made a significant change from the Canadian Bill of Rights, which said that the following rights have existed and shall continue to exist.
We have tried to capture the idea here that whether or not these rights have existed in the past, they are to be enjoyed in the future. You will hear from Professor Tarnopolsky later in the week and I shall be very interested in hearing what he has to say. We shall follow that up with interest.
Mr. Cowling: It is the frozen concept theory.
Mr. Strayer: Yes. We have tried to overcome that in the drafting.
Senator Williams: You realize, of course, that some of what the Indian enjoys is not enjoyed by other people in Canada. So does this statement, to which you have referred, go far enough to be effectively useful to the Indian?
Mr. Strayer: Well, one can never predict these things with complete certainty. We think it will have an impact. By the same token, I think we may get some representations from Indian organizations which will be concerned about any inroads into the Indian Act, and they will have to be looked at very carefully. We think that the two can be reconciled; and, of course, at this moment there are discussions going on with regard to amendments to the Indian Act.
Senator Grosart: If this bill is to stand, someone should consider changing the word “enjoy”. It is a bad piece of writing. You can have rights that you do not enjoy. It will be very difficult to enact that you shall “enjoy” certain rights. The obvious word is “have”.
Mr. Strayer: Perhaps it is a habit of lawyers to use that term. It is a well-known term in law.
Senator Grosart: It is a very bad one in this context. It may be good in law but it is very bad in English. My question is
this: Would it be beyond accepted usage if the Parliament of Canada sent an address to Westminster requesting the repeal of the BNA Act? Just that.
Mr. Strayer: I cannot think that would be in accordance with accepted usage.
Senator Grosart: If under the 1949 pattern, despite accepted usage, such a petition was forwarded, what would be the constitutional consequences in Canada? It is a “square one” question, but worth considering.
Mr. Strayer: It should be said on the 1949 amendment that the decision taken by the government of Mr. St. Laurent, as I understand it, was that whatever that might do to increase the jurisdiction of the Parliament of Canada, it did not affect the jurisdiction of the provinces. Instead it was to enable Parliament to do things which otherwise the United Kingdom would have to do. It did not in any way diminish the powers of the provinces. His argument was that it simply put the Parliament of Canada in the same position as the provincial legislatures with respect to amendment of the institutions of that particular government. But if such an amendment were sought, simply a repeal of the BNA Act, I suppose it is open to debate whether that could be challenged in the courts, even if the United Kingdom government did it.
Senator Grosart: I asked what the consequences would be.
Mr. Strayer: The consequences, first and foremost, would be political. It is perhaps not for me to elaborate on it. Whether there would be any legal consequences in terms of that act being challengeable, I am not sure.
Senator Grosart: What I asked is, if it were repealed, what would be the constitutional consequences for the partners in Confederation?
Mr. Strayer: So far as the provinces are concerned, their provincial constitutions depend for the most part on provincial law, so they would continue to function. But there would be a void at the centre because the federal government, in Parliament for the most part, depends on the BNA Act, which would not be the case if this bill were adopted. There would be some institutions survive, such as the Supreme Court and the Governor General, institutions which do not depend for their existence on the BNA Act.
Senator Lang: Ontario and Quebec would have to join up again.
Senator Flynn: The 1949 amendment, in my view, did perpetuate the federal Constitution. That is not the attitude of the present Prime Minister, so I think it would be the provincial Constitution which would disappear.
Senator Grosart: My point is, would it not, in effect, force a constitutional conference, on a “square one” basis at which a new Constitution would be arrived at by consent of the component parts of the federation?
Mr. Strayer: I can only speculate on that.
Senator Forsey: That gets us into the realm of how many angels can dance on the point of a needle. Surely the Supreme Court would take up that point. Surely the Supreme Court would not survive such an enactment, because its existence is based on section 101 of the British North America Act.
Mr. Strayer: I am sure I am getting into very deep water very quickly. Frankly, I do not know. That is a very difficult question. Would laws which have been passed under an existing authority—that is, the BNA Act—both provincially and federally, and adopted by a body having a lawful existence, be eliminated if you withdrew at a point in time the underlying authority on which they had made those laws? I am not sure they would.
Senator Forsey: That would be a question for a decision by the Supreme Court. I want to get back to Senator Williams’ question. It seems to me that the only thing in this charter—there are two points which arise out of it—the only thing in this document which has anything to say about the rights of the aboriginal peoples is clause 26. The others give them the same rights as everybody else, but that is not really the point. Clause 26 is positively “Mackenzie Kingly.” It reads:
—any right or freedom … that may have existed … any right or freedom that may have been acquired … by virtue of the Royal Proclamation of October 7, 1763.
If I were an Indian or an Inuit I would view that as a very slim basis indeed for claiming any rights. It leaves the whole thing very much in the air.
The other point that arises is that you might have the question of reverse discrimination coming up here. The Indians and the Inuit, it seems to me, might say, “We are entitled to something more than simply equal rights with these interlopers, these miserable Europeans who have arrived here”—and the later immigrants from Asia or Africa, or wherever it may be.
Mr. Strayer: I think, in the first place, the reference to the Royal Proclamation of 1763 reflects specific concerns that had been raised at one time or another by Indian groups when they heard that the Constitution might be revised in some way.
Senator Forsey: But it does not touch on what happened in the Nisgha case.
Mr. Strayer: The Nisgha case demonstrates beautifully the difficulty of being more specific as to what those rights are. It is still a matter of debate as to what those rights arc. I am not sure that changing that to “shall” would result in it meaning anything more, unless we start to define those rights. I welcome any proposals for defining those rights. We found it very difficult to do so.
Senator Godfrey: It seems I am the only one who does not know what that Royal Proclamation of 1763 is all about.
Mr. Strayer: It was a proclamation issued after the conquest of Quebec.
Senator Connolly (Ottawa West): It was issued after the Treaty of Paris—long after.
Mr. Strayer: Yes. It sets out a number of matters which are not germane to our discussion today. Among other things, it set out a mode of acquiring or not acquiring land from native persons. It required, for example, that land could not be acquired from native persons except by the Crown and only on certain conditions.
That proclamation is seen as the underpinning of aboriginal rights in some parts of the country. There is still debate today as to even what part of the country it applies to. That is what the Nisgha case was all about.
Senator Fournier (de Lanaudière): Clause 6 of the bill deals with the right of the individuals to life. At what point of life does that right exist?
Senator Flynn: You mean, when does life start?
Mr. Strayer: That remains for interpretation, senator, just as it has under the Canadian Bill of Rights. Similar phraseology is in the Canadian Bill of Rights.
I assume you are referring to the debate especially prevalent on the question of abortion as to whether life begins at the time of conception or at some other point. This does not try to resolve that very profound question.
Mr. Cowling: Mr. Chairman, if the general discussion on the entrenching part is over, I have two or three rather technical questions to put.
Bill C-60, as I understand it, would purport to entrench the provisions on the Supreme Court; that is to say, make those provisions unamendable by a unilateral act of Parliament. Is my understanding in that respect correct? That is what I took to be the case from reading the explanatory notes.
Senator Connolly (Ottawa West): Where do we find that in the text?
Mr. Cowling: It is clause 133, on page 62, the explanation for which reads:
This section provides for the constitutionalization and entrenchment of ss. 101 to 115 relating to the Supreme Court of Canada.
So I take it that once those provisions are adopted in this formal method yet to be decided upon, the Parliament of Canada cannot then alone amend them.
Mr. Strayer: Once they are so adopted and entrenched, yes, with the normal processes of constitutional amendment.
Mr. Cowling: If that is so, would it not be proper to extend the exception under section 91.1 to those particular provisions? Section 91.1 now indicates the areas which may be amended by Parliament alone, and contains certain exceptions, such as the use of the English and the French language, and there is the right to have a Parliament every so often, and so on. I would have thought it would have been proper to extend that exception to include amendments to the Supreme Court provi-
sions, if you really mean they cannot be amended in future by unilateral act of Parliament.
Mr. Strayer: It is an interesting point. Section 91.1 does not deal with certain other things that may be entrenched either, such as the Statement of Aims or the Charter of Human Rights and Freedoms.
Mr. Cowling: Yes.
Mr. Strayer: I think that is worth further consideration. I think the assumption of the draftsmen and the people who discussed this was that at about the same time as entrenchment we would probably be coming to some arrangement on a general constitutional amendment procedure, and for that reason we did not accept everything out of section 91.1. The reason that certain things are in section 91.1 now, of course, has something to do with history—the fact that these sorts of exceptions were in the original section 91.1 adopted in 1949. It was on that basis, I think, that the exceptions were confined to that kind of matter, but it could be given further consideration.
Senator Forsey: But you have bunged into section 91.1 clauses 10, 11 and 12, haven’t you, so why not bung in the Supreme Court provisions while you are at it?
Mr. Strayer: Well, section 50, for example, of the BNA Act bungs into section 91.1, too. We have just followed an honourable pattern.
Senator Connolly (Ottawa West): Mr. Chairman, I think the committee needs a fuller explanation of clause I 32. I think what Mr. Strayer is doing today is very helpful, but I think the committee would be well served by a further discussion of clause 132. You talked about clause 132 as referring to the Supreme Court.
Mr. Cowling: I believe that is clause I 33. Clause I 32 is a similar type of provision dealing with other matters.
The Chairman: Yes, because clause 132, to my mind, only talks about regional disparities and the independence of the judiciary.
Senator Connolly (Ottawa West): Perhaps I should have said clause 133.
Mr. Cowling: I would draw attention to the wording in clause 133:
… binding equally on the Parliament of Canada as on the legislature of all the provinces.
I find that rather peculiar wording to express the concept of unamendability by the Parliament of Canada. It is not really a question of making it binding on the provinces. It is a question of saying the Parliament of Canada cannot by unilateral act amend these provisions, surely.
Mr. Strayer: It could be seen as binding on the provinces in certain respects—for example, the appointment process to the Supreme Court. In that sense it would, if entrenced, be binding
on the provinces as well. I agree we might have said, “In order that this part may be entrenched as quickly as possible, … ” such-and-such and so-and-so. “Entrenchment” is not a term of science, and there is a certain amount of debate and confusion as to what that means. I take it that is what the draftsman was trying to avoid.
Mr. Cowling: Whether you put it there or in clause 91.1 does not matter. It seems to me it would be better in clause 91.1, because clause 133 is in Part II, which will eventually fall away.
Mr. Strayer: Yes, although it does address itself to the effect of the Supreme Court provisions vis-a-vis the provinces as well as Parliament, and in that respect it would not be appropriate in clause 91.1. I think that is perhaps why it is in a separate place.
Senator Connolly (Ottawa West): Am I to understand that if clause 133 should be approved and become binding equally on the Parliament and the legislatures, then if it is to be changed in any way, the amending formula, whatever is agreed to, will have to apply?
Mr. Strayer: Yes, that is right. We assume the amending formula has been used, and any changes would have to be done by that amending formula.
Mr. Cowling: I have a short question on clause 119, which deals with the retirement age of Superior Court judges. This is not a designated provision, as I understand it; it is going to be enacted when this bill comes into force. I was wondering why it is not thought that that is an acceptable way of modifying that kind of provision, when in 1960, when a similar amendment was made, recourse was made to the U.K. Parliament on this particular amendment.
Mr. Strayer: I cannot speak for all the considerations that went into that decision in 1960, but on examining it in retrospect it is difficult to see why the consent of the provinces was required. In looking at matters excluded from the jurisdiction of Parliament under clause 91.1, it is hard to identify the retirement age of Superior Court judges as being excepted from the general power of Parliament. It does not seem to be a class of subject assigned to the legislatures of provinces. It does not seem to be a right or privilege granted or secured by the Constitution of Canada to the legislature or the government of a province.
I notice that clause 120 is designated, and that was done on the basis that we felt the legislatures had some kind of right to have their Superior Court judges paid by the Parliament of Canada, and that to deal with that unilaterally would be doing something which clause 91.1 may well preclude Parliament from doing. It is a little harder to see it in this context. If you think about the various provisions for salaries, where it was understood that payment would be made by the Parliament of Canada for various purposes, where apparently a right was secured to the provincial legislatures that payments would be made, was assume the same reasoning would apply here.
Mr. Cowling: Mr. Chairman, I just want to put on record a quote from a booklet entitled The Amendment of the Constitution of Canada, put out by the government in 1965 which says with respect to the 1960 amendment:
The federal government sought this amendment only after obtaining the agreement of all provinces, since the amendment provided for the compulsory retirement at age 75 of judges of provincial courts. In this instance again Quebec placed the matter before its legislature before agreeing.
In Bill C-60 we are going from 75 to 70, so it is really in the same area.
Mr. Strayer: I recognize that they followed a different procedure there. I do not think they set out any particular rationale.
Mr. Cowling: The inference was, I think, that although it might be a matter in the Constitution of Canada, it somehow involved the provinces. The amendments were to be made by the federal government, but they were provincial judges. If that reasoning is correct, I can see that it might still apply today, and it might apply to matters even other than the Supreme Court, that although strictly speaking are part of the Constitution of Canada affect the provinces in some way.
The Chairman: Senator Lafond, I believe you had a question.
Senator Lafond: No, Mr. Chairman, but I have one brief observation. Earlier, in reply to Senator Williams, it seemed to me that the witness attached special significance to the words “shall enjoy and continue to enjoy” in clauses 6 and 7. I should like to draw the attention of the committee to the fact that the French version has no “shall” and no “continue”; it just says “enjoy”.
The Chairman: Is there any comment on that?
Mrs. Desjardins: Yes, but this translation is good, as the idea of continuity is implied. Most French texts dealing with the Constitution and fundamental rights are the same. I do not believe that the meaning of the english words has disappeared, unless you wish to make another observation.
Senator Flynn: We feel the translation is better.
Senator Forsey: The French text is very often much clearer, much more concise and shorter than it’s English counterpart.
Senator Connolly (Ottawa West): Would it be because these clauses were originally written in French and translated into English? What do you say?
Mr. Strayer: I should say that the wording of the French version, while essentially based on an English text for a good part of it, was deliberately a free and separate draft. We are
trying to follow this procedure in bills now, so that you do find the French version is often much shorter and, to many eyes, clearer and simpler.
Senator Godfrey: More intelligent to lay people anyway.
Mr. Strayer: The two versions are trying to be more faithful to their respective traditions.
Senator Connolly (Ottawa West): We had this problem before. Was it the Maritime Code? Senator Lang should know, because he sponsored the bill.
Senator Flynn: It was a bill that was revised by a committee of the Quebec Bar, in collaboration with officials of the Department of Justice.
Senator Lafond: The Business Corporations Act.
Mr. Strayer: I should say that we were working under some difficulty here, because the BNA Act was written only in English to begin with, some of the translation of which was reasonably good and other of which was not, according to my colleagues. In many cases we had, in the first place, simply to try to render into French what had originally been enacted in 1867, where we were following the BNA Act phraseology. In other respects we were trying to incorporate the better translation which had been made over the years, so we were not starting with a clear slate in this situation.
Senator Fournier (de Lanaudière): Does clause 119, which refers to the tenure of office of judges of the Superior Court, apply to those already in office, or only to those who are going to be appointed after this bill becomes law?
Mr. Strayer: I will ask Miss MacDonald to answer that.
Miss MacDonald: It applies only to judges who are going to be appointed in the future. I would call your attention to clauses 144 and 145, which keep the present retirement age for the present judges.
Senator Fournier (de Lanaudière): Referring to what you said a moment ago concerning the way the Constitution was written in English, there was a time, and it was a good time, when English statutes were written in both languages. I do not know why they have abandoned that good practice.
Mr. Strayer: I think that may go back to the time of the Normans. You are speaking now of the United Kingdom?
Senator Fournier (de Lanaudière): Yes.
Mr. Strayer: Well, there was something called “law French” which was used in the courts up to about the fifteenth century.
Mr. Cowling: A final question, Mr. Chairman. Could the witnesses explain why clause 127 is necessary? It seems to me
that if you are repealing the provisions of the BNA Act you do not need to provide for cases of inconsistency. It is either repealed or it is not.
Miss MacDonald: There are a number of reasons for that. First of all, the whole of the BNA Act is not going to be repealed at the present time. It may be that by the time the whole bill is ready it will be possible to analyze more of the provisions of it and it may be possible to repeal them at the same time. But there are areas where it has not been possible to give enough study or to have enough consultation with the provinces to come up with a real feeling for whether those particular sections have any present effect or any continuing effect. It may be that some of them are spent, but then it may be that some of them still have some residual power to them. There are several other things. The bill will be coming into effect in stages and there might be some overlapping that would not be seen immediately between the various provisions as they come into effect. You try to think of everything when you are doing it, but it is always possible that something will be overlooked. I think that is the idea behind it. For instance, I think that all the provinces, as Senator Forsey said, have now provided for five-year legislatures, but perhaps if there was something that conflicted in a provincial constitution, once that was entrenched it would prevail over it.
Mr. Cowling: Except it only talks of conflict with the act of 1867. Oh, I am sorry, it also says “or any subsequent constitutional enactment.”
The Chairman: Do you want to move into another area?
Mr. Cowling: Mr. Chairman, I want to ask the witnesses in what way they consider the language of clause 5, particularly the language of the last few lines of clause 5, and the language of clause 23 stronger than the provisions of the present Bill of Rights so far as concerns directing the courts or allowing the courts to hold that provisions are in conflict with the charter.
Mr. Strayer: With respect to clause 5, I think that that was seen as essentially a statement of purpose which would set out certain objectives with respect to the charter. It may well be useful as an interpretation aid in difficult cases. Clause 23 had, we thought, the more precise formulation. As I mentioned before, we examined a lot of the writings on the Canadian Bill of Rights and a lot of the jurisprudence, and we wanted to overcome some of the problems with the Canadian Bill of Rights, if we could. One of the problems has been that the Bill of Rights says that no law shall be construed or applied so as to abridge any of the rights set out in that bill. That sometimes has been seen by the courts as simply an interpretation device, so that if the law is quite unambiguous, and if it does quite clearly abridge rights, and if it was intended to, then, it has been argued with some success in some courts, the law could not be construed and applied in some other way. Construction was seen as something which you employ if the meaning is not clear and if you cannot divine the precise meaning from the words themselves. This is the formulation we have proposed.
Again, I think this is something on which we will welcome, and look forward with great interest to, the comments of experts in the field. We have drawn on the writings of experts and we have taken some advice, but I think we are open to further comment on that. The hope is, however, that this phraseology will mean that a law, whenever it may have been passed, cannot be given the effect of abridging the rights set out in the charter. We think that is stronger than the phraseology in the Canadian Bill of Rights. The Canadian Bill of Rights did not turn out quite the way that many of its original supporters had hoped, and we are hoving to learn from experience in that respect. I think also that one must look at clause 23 in association with the opening words of clauses 6 and 7 which referred to earlier, where we find the words “shall enjoy and continue to enjoy”, and we hope we have avoided the problem of rights being deemed to have been frozen as of the time of the adoption of the charter.
Senator Smith (Colchester): I notice the use of the word “proclaimed” in clause 23. It says: “it is hereby further proclaimed that … ” and it is also to be found in clause 22 and in other places. It is a word that one does not ordinarily find in drafting and I am wondering if it was chosen because it has some special significance.
Miss MacDonald: I am not aware of any particular significance except that it is a more emphatic statement than normal.
Senator Smith (Colchester): Could anything be more emphatic than “it is hereby enacted” and so on?
Miss MacDonald: It is a question of style, I suppose.
Senator Fournier (de Lanaudière): Or “declared”.
Miss MacDonald: It would be the equivalent of “declared” in this case.
Senator Fournier (de Lanaudière): The proclamation will proclaim what is proclaimed in the proclamation!
Senator Godfrey: Is it not on section 23 that we had the suggestion by Mr. Cowling that there was a better version by Professor Tarnopolsky? I wonder if Mr. Cowling could read that to us again so that the witnesses could comment on it.
Mr. Cowling: Mr. Chairman, perhaps I could quote again from Professor Tarnopolsky’s article in the Lay Society Lectures at page 193. This is his proposed ideal wording:
any provision of a law of Canada, whether enacted before or after the coming into force of the Canadian Bill of Rights, which is inconsistent with any provision of the Bill of Rights shall, to the extent of any such inconsistency, be inoperative and of no effect.
I see two differences between that and what we have in Bill C-60. For one thing, there is no mention of “before or after the coming into force” of the bill, and language as strong as “inoperative and of no effect” has not been employed. These seem to be two possibly quite important distinctions having regard to the reticence which the courts have shown in really putting teeth into the Bill of Rights.
Mr. Strayer: Certainly that option was considered. I suppose it is a matter of judgment as to which is the better formulation. We had thought that the opening words of clauses 6 and 7 would deal with the problem of “before or after”. With respect to the phraseology “shall be inoperative and of no effect”, we do have in clause 23 the wording, “no law shall apply or have effect”, but I think that could bear further examination. The intent is clear, but one can debate the words.
Senator Lang: Is there any particular reason for scattering these preambles throughout the bill rather than putting them all in one master preamble?
Mr. Strayer: I suppose it was the expectation that the charter might, on occasion, be excerpted from the Constitution and be framed and hung on walls or memorized or something.
Senator Forsey: God forbid! It would drive anyone plumb crazy.
Senator Godfrey: Not after you have finished amending it, senator.
Mr. Strayer: In any event, the purpose was to have a self-contained part which would have a “purpose” clause in it.
Mr. Cowling: It could apply to all the other chapters, because it is now a multi-chaptered document as opposed to the present Bill of Rights.
Mr. Strayer: Perhaps I could ask Miss MacDonald to comment.
Miss MacDonald: I don’t know what the question is.
Mr. Cowling: I was supporting what Mr. Strayer was saying. To me, the proper place to have had this provision would have been right in clause 6 itself, where you might have added language such as “and neither Parliament nor the provinces may make laws which derogate therefrom”—or words to that effect. But that would combine the operative provision with the teeth right at the beginning, whereas now you have to look at clause 23 to find out.
Miss MacDonald: The point is that clause 23 applies to more than clauses 6 or 7 do. It applies to everything that is an individual right in the charter.
Mr. Cowling: I understand that.
Miss MacDonald: The purpose of these provisions throughout here is to deal with provisions that would apply to more than the rights set out in one particular section or another.
Senator Forsey: That raises the question of why clauses 6 and 7 are separate. Why not put the whole of clause 7 under clause 6 as well?
Miss MacDonald: Again there is a difference between clauses 6 and 7, the latter being more the legal rights where the former would be closer to being political rights.
Senator Forsey: Oh, well, now wait a minute!
Miss MacDonald: I am not thinking of elective rights in that sense, but more social rights or political in the broad sense of the word, of the type of social right. Whereas clause 7 is more particularly the legal rights.
Senator Forsey: I should have thought in clause 6 you have the right of the individual use and enjoyment of property and the right not to be deprived thereof in accordance with the law. Apart from the fact that it happens not to mean anything, as we discovered this morning, it still purports to be some kind of legal right.
Mr. Strayer: Among other things, I think I should say that the division here simply follows the division in the Canadian Bill of Rights.
Senator Forsey: No doubt it is a grateful tribute to Mr. Diefenbaker. I am sure he would be much obliged.
Mr. Strayer: Well, it had the advantage of familiarity.
Senator Godfrey: Clause 6 is fundamental and clause 7 is not. Why?
Senator Lang: It is unfundamental.
Senator Forsey: Exactly.
Mr. Strayer: I suppose that is a matter for debate. Some people would argue that freedom of opinion, freedom of thought, freedom of the press, and that sort of thing are more fundamental than what happens to you in court.
Senator Godfrey: More fundamental than being sent to jail?
Senator Grosart: Surely it is not more fundamental than the right not to be arbitrarily detained, which is in clause 7, which is about as fundamental as you can get.
Mr. Strayer: I think clause 7 can be seen as a number of particular applications of the latter part of clause 6.
Mr. Cowling: Liberty, for instance.
Senator Bosa: Mr. Chairman, going back to the question I put this morning with respect to clause 22, having to do with the “preservation of English and French as languages spoken or enjoyed by identifiable minority groups,” what is meant by “identifiable minority groups”?
Mr. Strayer: Well, I think that would be difficult to define very specifically. The distinction that is being made here, I think, is between the odd, isolated instance and the linguistic groups which do exist in various parts of the country and are trying to maintain their identity with their mother tongues. I admit that that is not a very precise phrase but, if one looks for alternatives, that is also difficult. I am not sure what a good alternative would be, but the thought was essentially that.
Indeed, we would welcome suggestions on what good alternatives would be.
Senator Bosa: Do I understand you correctly that when you use the word “identifiable” you are referring to groups which wish to retain their identity?
Senator Flynn: And you are use the word “substantial” also in the act—”identifiable and substantial.” I agree that the term is not too precise, probably for fear of speaking of the two founding peoples.
Senator Robichaud: Could this be related to one of the recommendations of the B & B Commission, where they say that a 10 per cent ethnic group within a local or given jurisdiction is then an identifiable group within either English or French? I am not going beyond that. But that was a recommendation of the B & B Commission—10 per cent.
Senator Marchand: In French, I believe we are talking about a group, I think there is something to what Senator Bosa is saying, is there really a will? The group has to want to preserve its identity and survive. That is what makes it identifiable. But if it is noticed, from the outside, that these people speak the same language, then I think we should come back to the first version, that is that it should be a group which, one way or another, wishes to maintain that identity. That is what we call “an identifiable group”, because in the case of a group which has decided to be assimilated, even if they are all Ukranians, for example, when they decide to be assimilated, they are no longer identifiable.
Senator Forsey: Just like the Ryans or the Johnsons.
Senator Marchand: All the French people in Canada. There is the matter of the will, that is “identifiable”, will we, for example … [Text] We identify the group. I do not think you can identify the group if the group itself does not decide it is a group, and that it wants to keep the group as a group for one reason or another. So there it is identified.
We noticed it, for example, during the enquiry on bilingualism and biculturalism. We realized, among other things, that there was a very important German group that refused to be identified, for obvious reasons which I do not have to spell out since it was after the war. However, they did exist as a group. We could have said for example, 10,000 Germans live there, but they do not want to be identified. They did not have any associations and did not want to be considered as a distinct group. On the contrary, the Ukranians out in Winnipeg wanted to be identified and recognized as a group. So, “an identifiable group” is a group which has shown definite intentions of remaining a group, one way or another.
I do not know it I have expressed myself very precisely. understand what I say.
The Chairman: I just wonder if Mr. Strayer has any response to that, or any comment on it. If not, Senator Smith has been waiting very patiently for some time.
Mr. Strayer: I do not think I have anything.
Senator Smith (Colchester): l would like to go back, if I may, to the phrase, “the right of the individual to life” and so on, in clause 6. You very kindly asked, at the time that was being discussed, if I had any questions to ask. I said then that the question was one that Senator Fournier had asked, and I was satisfied with the answer, which was true at that moment; but as I have reflected upon the conversation we have been having since that time, I am not quite sure about that, because my recollection of Mr. Strayer’s answer was that this was an unresolved phrase which had an unresolved meaning, and, really, if it was in the Bill of Rights, and was not resolved, we did not want to worry about it too much—or some such general remark.
At the time I thought that was perfectly reasonable, but we may come to think that the Bill of Rights, though it may be pretty hard to amend, is just another act of the Parliament of Canada, and so if the courts make an interpretation which becomes very distateful to a very large number of our population, Parliament can deal with the conflict there; but we are now talking about a phrase which, if plans work out, would become entrenched, and would not be subject to being disposed of so easily if any conflicts arose by acts of Parliament. I therefore wonder if there is a real question as to whether we should contemplate putting something into the entrenched part of our constitution, on some future occasion, the meaning of which we do not now know, if Mr. Strayer’s comment was correct—and I accepted that it was.
Mr. Strayer: My response, Senator Smith, was with regard to what I understood to be a question about the commencement of life, and a question of when abortion, for example, may be seen to be a deprivation of life. I am not sure that even if one takes the view that from conception there is life, and even if you want that in the bill, it would mean that there could be no abortion. If abortion were duly provided for by law, it would not be deprivation of life other than by due process of law.
However, my more important point is that this is a very debatable area. It is something on which I am aware there is a very strong divergence of opinion. It is, of course, always open to amend the bill to try to solve that issue.
One might also want to address the issue in connection with capital punishment. It will require some very difficult policy decisions to be made by persons other than myself. We have seen a great divergence of opinion on the application of the Criminal Code, for example, with respect to the provisions as they are. The question then remains, can the Constitution be more precise on this than are the laws now?
Senator Smith (Colchester): I appreciate the difficulty. My point in emphasizing the question again was simply that perhaps we should take note of the fact that here is an area where very considerable danger may lie, and we should not pass over it lightly.
Mr. Cowling: Has there been a case of the equivalent provision in the existing Bill of Rights—the life and liberty provision?
Mr. Strayer: I am afraid I could not give you a clear answer on that.
Mrs. Desjardins : I could perhaps add that this phrase is found in most international agreements. We are trying to determine in those other contexts the exact meaning of «the right to live». But all in all, it is a very general phrase.
Senator Forsey: This is one of the problems with the “Bill of Rights”. There is always a linguistic problem when we are considering entrenching such provisions in the Constitution. We always have to face that problem.
Surely in the United States, in the history of the interpretation of their Bill of Rights, it has illustrated this kind of thing. They have gone from black to white on certain things. I do not intend to pun, but going from white to black would be more appropriate. At times the general provisions were so interpretive as to block all kinds of social progress in the matter of social legislation, and that sort of thing. They are always up against this. It is one of the real problems, I think, of having an entrenched Bill of Rights.
Mr. Strayer: The Fourteenth Amendment of the American Bill of Rights deals with the right to life, liberty and property, and prohibits the state from denying those without due process of law. I am not aware that it has been used in this context at all with respect to the question of abortion.
Senator Forsey: I didn’t think it had. The problems that arise out of the interpretation of the general question are some of the central problems in having an entrenched Bill of Rights.
Mr. Cowling: The problem is, you may have the due process of a bad law.
Senator Grosart: Mr. Chairman, while I realize that some of these phrases have been sanctioned to some extend by long usage, it raises the question in my mind as to whether the fundamental rights and freedoms—thought, conscience, opinion, peaceful assembly, press, and so on—are absolute in the sense that they cannot be altered by due process of law; whereas one of these rights is conditional on removal by due process of law and the other in accordance with law. Does this mean that freedom of thought, conscience and religion cannot be abridged by due process of law? I know that “due process of law” is a pet phrase in connection with the right of life and liberty, but what is the significance of using “the due process of law” in one place and not in the other?
Mr. Strayer: I think it is recognition, senator, that is the normal course of events in any state it is necessary to deprive people of their liberty, occasionally the security of their person, and, in some states, life. All that you can put in a constitution is a requirement that if that is to happen it must be done in accordance with the due process of law. When it comes to matters of freedom of opinion and expression, etc., they are typically, in national and international instruments, regarded as being not normally subject to limitations except in rather extraordinary circumstances. It is for that reason that we have clause 25, which does permit some limitations.
Senator Grosart: Surely freedom of peaceful assembly is subject to abridgement by due process of law? So is freedom of the press and freedom of expression. All of them are subject to abridgement by due process. All I am asking, as a layman, is why you use it in one place and not in the other. If you use it in one place, would it be interpreted by the courts as saying, “Because it is specifically used in connection with one freedom, its omission from the others means that they are absolute in the sense that this one is not”?
Mr. Strayer: Similar distinctions appear in the Canadian Bill of Rights, and I do not think any particular problem has arisen as a result of that. One can find in the American Constitution, for example, freedom of the press and freedom of expression, and so forth. Even though it is stated in a very broad and apparently absolute way, the courts over the years have found that there are limits that must be imposed on this kind of freedom. As Mr. Justice Holmes said, freedom of speech does not give the freedom to yell “Fire” in a theatre. Courts have found their way to put reasonable limitations on these things. I think the distinction between those freedoms and the others is that one does contemplate that there is a law providing certain limitations. You will notice that with regard to freedom of assembly in this bill, it says “freedom of peaceful assembly”, so there is not apparent authorization here for riotous assemblies, unpeaceful assemblies.
Senator Forsey: What about associations? You might run into problems with a union shop, a closed shop, and that sort of thing.
Senator Smith (Colchester): What is the difference between the phrase “due process of law” and “in accordance with law”?
Senator Grosart: That is one of the questions that I raised.
Mr. Strayer: That is a rather difficult question. The purpose of making a distinction here was to avoid some of the problems which have arisen in the past under the American Constitution. The concept of due process of law has been given rather broad meaning to cover not only fair process, fair procedure, but it has also had a certain substantive content. It has been applied in the United States at different times to allow the
courts to review the rates fixed for interstate pipelines, and that sort of thing, on the basis that the rates that had been fixed by the proper authorities really involved the taking without due process of law, because it was not giving the operator of the pipeline a sufficient return.
There had been an agency established—in this particular case, the Federal Power Commission—to address those questions. The courts applied their own norms with respect to what is adequate remuneration, what is adequate return on capital, and that kind of thing. It was with that kind of problem in mind that a distinction was made. The reference to the right of the individual to the use and enjoyment of property, and the right not to be deprived thereof except in accordance with law, was seen essentially as a procedural safeguard, that a person’s property could not be taken away from him arbitrarily. That would be reinforced by various of the provisions in clause 7— the right to a fair hearing, and that sort of thing. But it would not perhaps import all of that American jurisprudence on fair return to enterprises with respect to economic activity.
Mr. Cowling: The American wording is what, again, Mr. Strayer?
Mr. Strayer: They have all of these lumped under “due process of law.”
Mr. Cowling: That is what you have here in the English version. It says: “conformément à la loi” in the French version, which would translate more to “in accordance with the law.”
Mrs. Desjardins : French version says : “application régulière de la loi” for “due process”. The problem is that you read the wrong line.
Senator Neiman: Is there no Canadian jurisprudence on which you could base the formulation of the wording?
Senator Forsey: The French version also makes a distinction between “application regulière de la loi” and “conformément à la loi”. Is it not deliberately that the draftman made that distinction?
Mrs. Desjardins: Yes, and this is exactly the question that was raised, a few moments ago, about the phrases “due process of law” and “in accordance with law”; in fact, the phrase “application regulière de la loi” comes from the Canadian Bill of Rights of 1960 and it reproduces the two distinctions made in the English version.
Mr. Cowling: Mr. Strayer, in the right of the individual to life, liberty, and so forth, provision, the language you use is “due process of law.” Are you not importing the American jurisprudence that you referred to; and, if not, shouldn’t you have imported it?
Mr. Strayer: I think we are to the extent that it commends itself to our courts. However, the concept was that there was a recognizable distinction between the rights and security of the person on the one hand and property on the other.
Mr. Cowling: So, insofar as property is concerned, this provision would not preclude a properly drawn law, a clearly drawn law, which purported to confiscate property without compensation, because the phrase used there is “in accordance with law” rather than “by due process of law.”
Mr. Strayer: Probably not. No one can be absolutely sure as to how these sections will be interpreted. It was our assumption that that would be given less breadth than would “due process of law.” Of course, even there that could require that there be a procedure laid down by law for the taking of property.
Mr. Cowling: But is that really giving very much? I do not think that many governments these days try to take property without any legislative backup whatsoever.
Mr. Strayer: Well, I do not think it changes the situation too much, although conceivably a government might try to take property without resorting to law. I am sure the courts would somehow find a way of stopping that.
Senator Forsey: It would not touch the judgment in the Florence Mining Company case, would it?
Mr. Strayer: No. There was a famous dictum in there, wasn’t there? Wasn’t it Judge Ridden—
Senator Forsey: “The maxim ‘Thou shalt not steal’ does not apply to the legislature.” I quoted it this morning.
Senator Flynn: Why wouldn’t you add the words “and without proper compensation”?
Mr. Strayer: I simply leave the dilemma with the committee. It is one thing to argue for having an expressed provision for compensation in the standard real property taking case; it is another matter as to whether the courts should be getting into all sorts of economic regulation and seeing whether the various components of society are getting a fair share of their capital. That is a question which must be addressed directly, if necessary. I can do no more than say that.
Senator Grosart: To come back to the matter of entrenching these items in clause 6 which are described as fundamental, whereas in clause 7 they are apparently not fundamental, could we have an opinion as to the effect to the entrenchment of the fundamental rights and freedoms of opinion and expression— its effect, for example, on legislation outside of this particular measure which would seek to curb, for example, the expression of opinion in extremely pornographic language, censorship, and so on? Because this is here entrenched, does that make it impossible for Parliament or the legislatures to proceed to restrict certain types of freedom of opinion and expression of that opinion?
I would ask the same question in connection with the treatment of the press and its effect on the libel laws and such acts as the Official Secrets Act. You have freedom of the press and other media for the dissemination of views and the expression of opinion and belief. Does that supersede the libel laws?
Mr. Strayer: No.
Senator Forsey: It is entrenched. If it were just another act of Parliament in the ordinary sense, it would be a different thing; but we have to look at the effect of this on possible action in ordinary legislation.
Mr. Strayer: In the interpretation of similar provisions in the American Constitution, these have not prevented restrictions on pornography, although that has been a debatable matter at times. I think the jurisprudence is going back in favour of restriction. Nor has it prevented a proper law dealing with defamation. However, to make the matter clear, clause 25 was inserted. It states:
Nothing in this Charter shall be held to prevent such limitations on the exercise or enjoyment of any of the individual rights … in the interests of public safety or health, the interests of the peace and security of the public, or the interests of the rights and freedoms of others—
When it comes down to matters such as defamation, that would clearly involve the rights and freedoms of others.
Mr. Cowling: Has the U.S. got a similar provision, Mr. Strayer?
Mr. Strayer: No.
Mr. Cowling: In other words, the courts have developed their own limitations?
Mr. Strayer: They have very limited restrictions. For example, on the right to habeas corpus it is limited in time of war. But most of their rights are stated in an absolute fashion.
Mr. Cowling: Could it not be assumed that our courts would do the same thing, and is clause 25 not an invitation to our courts to go too far, perhaps?
Mr. Strayer: That is an arguable proposition. In approaching this matter, one can see various options. When the War Measures Act was invoked, the Bill of Rights was suspended.
We are doing away with that in the bill as drafted. Another option is the U.S. route. The option which is involved here is one which is very common in international covenants of various sorts, and also in a number of more recent, more modern constitutions.
Senator Lang: Mr. Chairman, on the question of the non-discriminatory clause, clause 9, there is non-discrimination on I he ground of age. If you then come back to the final paragraph under clause 6, the right of the individual to equality
before the law, does this mean that if a young offender got a shorter sentence than did an adult who was before the courts on the same charge, the adult could then say that he was being discriminated against on account of age?
Mr. Strayer: I suppose again the qualifications of clause 25 might be relevant in this respect.
Senator Connolly (Ottawa West): Mr. Strayer, wouldn’t the key point in the decision be the discretion of the court in such cases?
Mr. Strayer: Yes.
Senator Lang: Provided by statute though, of course.
Senator Connolly (Ottawa West): But if the court were given discretion—
Senator Lang: It wasn’t.
Senator Connolly (Ottawa West): I see.
Mr. Cowling: I don’t know if there are any examples of that right now. In the Criminal Code, for instance, are there different age provisions?
Mr. Strayer: Yes. Under the Juvenile Delinquents Act the age for the determination of juvenile delinquency varies from one province to another to some extent, and that has been attacked as a denial of equal equality before the law, but the Supreme Court said that was not a denial of equality.
Senator Connolly (Ottawa West): What are you saying?
Mr. Strayer: The Supreme Court said that the rules in the Juvenile Delinquents Act did not deny equality before the law, even though people were treated differently at the same age in different provinces under federal law. I think this was on the basis that there were rational and relevant factors which justified the difference. In that case it was a kind of geographic equality which was being argued, that a teenager in British Columbia was entitled to be treated just as well as a teenager in Ontario. The Supreme Court said that if you are treated in a way which is appropriate to your community, for reasons which are relevant to that community, then this is not a denial of equality before law. Of course, that is not directly on the point in question that you have raised. It is our assumption that phrases like “equal protection of the law” and “due process” will again follow the American tendency to look for a rational legislative purpose in making distinctions between one category and another. If that can be found, then they don’t strike down the law.
Senator Godfrey: I just want to bounce back to Senator Bosa’s question this morning, to point out that he was reading from a marginal note when he asked what was the meaning of “identifiable minority groups”. That is not part of the bill. Nowhere in the bill does that appear.
Senator Bosa: Read the next page.
Senator Forsey: On page 12 it says:
… any group of individuals constituting an identifiable and substantial linguistic community.
Senator Godfrey: That is not what I am referring to. All I am pointing out is that he referred to “identifiable minority groups”. The bill actually says:
… any group of individuals constituting an identifiable and substantial linguistic community.
That is different terminology. That is what has to be identified, not an identifiable minority group. That is all I am pointing out.
Senator Neiman: I should like to go back to clause 6, “freedom of opinion and expression”. I notice that we are concerned about the dissemination of hate literature and groups that have been formed for the purpose of propagating hate, often with racial overtones. I wondered how that is provided for or against.
Mr. Strayer: I think clause 25 would justify some appropriate limitations such as are in the Criminal Code now. The Criminal Code amendments on hate literature and anti-genocide provisions were, when adopted, deemed not to conflict with similar terminology in the Canadian Bill of Rights. We had the question recently in connection with the Human Rights Act. Again the question arose, because we have certain provisions in there about the dissemination of hate messages, and we came to the conclusion that the Canadian Bill of Rights, which has similar words in it, would not override those provisions in the Human Rights Act.
Senator Forsey: The right and freedoms of minorities would cover that, would they not?
Mr. Strayer: I should think so, yes, and possibly, order, peace and security of the public.
Senator Neiman: Have there been any legal decisions on that section yet? I still have some reservations about whether you can bring them under the broad peace and security area, or whether they properly belong there.
Mr. Strayer: There have been so few prosecutions under the hate literature provisions of the Criminal Code that I do not think the problem has been raised.
Mrs. Desjardins : I think it is the American jurisprudence that has limited and invented most of those expressions. The United States Supreme Court did not have any restrictive provisions and have therefore invented those expressions to a great extent.
Mr. Strayer: I think this is one area where they have had problems under the American Constitution, perhaps because they do not have a clause like clause 25. For example, there has been the recent problem with the Nazis marching in a suburb of Illinois, and the Supreme Court decided they could not stop that. I am not sure of all the facts, but I think the decision went on the basis of freedom of speech, and conceivably that could be a situation that in Canada we would feel ought to be controlled. I would think clause 25 might be germane for that purpose.
Senator Bosa: Clause 8 says:
Every citizen of Canada, wherever the place of his or her residence or domicile, previous residence or domicile, or birth has
—the right to move to and take up residence in any province or territory of Canada.
Does that mean that, for instance, a landed immigrant from England or France does not enjoy the same right, or is that governed strictly through the Immigration Act, being a discretionary right that can be repealed at any time?
Mr. Strayer: He does not have any special right as a landed immigrant under this clause. The Citizenship Act does provide in section 33, I think, that non-Canadians have the right to own and acquire property just like citizens, so in that sense he has a right; but he would not be protected by this clause, which gives him a right not only to own property in the abstract but to own property in another province. Clause 8 applies only to citizens.
Senator Robichaud: In effect, though, if it is not retroactive it declares the legislation of Prince Edward Island regarding property ownership as ultra vires.
Mr. Strayer: Yes, I think it does, in part at least. Of course, one has to consider the way in which this would be adopted. In the short run it will not come into effect in Prince Edward Island unless Prince Edward Island adopts the charter as part of its law, in which case it would be making a conscious decision. Apart from that, it will not become entrenched in the Constitution without the constitutional amendment process being gone through, so it is not going to happen immediately, and it is not going to happen without Prince Edward Island or any other province affected being involved in the process.
Mr. Cowling: Senator Argue raised a point in that respect this morning, and perhaps he would like to pursue it himself. He raised the question whether this would apply to existing legislation or only to legislation that came in after a province had decided to adopt the charter. Let us suppose the federal authority had a law somewhat like the Prince Edward Island law on the statute books at the time Bill C-60 came into effect.
Mr. Strayer: I think it is clearly the intent that it would, that it would have an effect on any existing laws. One must keep in mind that the kind of law which is prohibited here is a law which is simply predicated on the place of residence or former residence of the would-be owner or owners, and does not prevent the province from imposing limits on the amount of land held by anybody, or does not prevent the province from imposing requirements of development and management property; nor indeed does it prevent the province from having a general rule against non-resident ownership, as long as that non-resident prohibition is not limited to non-residents from outside the province.
If the Province of Saskatchewan wants to prevent non-resident ownership of farmland, in general I think it can do that under this clause, but it cannot do it on the basis of non-resident in the sense of non-provincial resident. It simply must be non-resident resident on the farm. In other words, to put it a simple way, if the province wants to prevent a resident of Prince Albert from having a farm near Estevan, and as well people from Manitoba or Ontario, it can do that. It is just that it cannot let the fellow from Prince Albert do it and not the fellow from Manitoba or Ontario.
Senator Olson: Mr. Chairman, may I ask if the application of this constitution and the laws that can be made by either the provincial or federal legislatures does in fact extend to the agencies set up under some statutory provisions? While you are thinking about that, I am referring specifically to clause 6, the last unnumbered paragraph dealing with the right of the individual to equality before the law and to the equal protection of the law. That is a declaration that every citizen of Canada shall be treated exactly the same under the law. But then if you read that along with clause 9 you find that the latter says—and it a non-discrimination clause—that:
The right and freedoms declared by sections 6, 7 and 8 of this Charter shall be enjoyed without discrimination because of race, national or ethnic origin, language, colour, religion, age, or sex.
Now that includes age. Of course, there are provincial laws and federal laws that have different rules for people of different ages such as the Farm Credit Act. If you are under 35 you can get a loan with certain terms and conditions, and if you are older than that then you are no longer eligible for that type of loan or for the repayment schedule. I am just asking whether or not those laws would all have to be changed or repealed if you are going to read section 6 and section 9 together, and specifically as they refer to age.
Mr. Strayer: Well, on your first question, I think it can be said generally that this would apply to the administration of laws by agencies of one sort or another. It would apply to regulations made under statutes, because clause 23 says that no law shall apply or have effect so as to derogate from these rights. Therefore anything being done under a law whether by delegated authority or not would be covered. But on the question of age, I think the complaint in that case would probably be with respect to a denial of equal protection under the law. I think that would be the most obvious complaint a person would make, and you have to refer back to the rights set out in clauses 6, 7 and 8. Then when you look at clause 9 you have to find a right set out in clause 6, 7 or 8 which is allegedly being violated.
I think in your example the most evident right would be the right to equal protection under the law and I think, again following the American jurisprudence, that a court here would say there is a rational basis for distinction which is relevant for the purpose of the legislation. It does not mean that everybody, of no matter what age, or sex has to be treated under every
circumstance in the same way. It means that basically and in principle they do have to be treated in the same way unless you find a rational basis, which is not related to some irrelevant idea of distinction between people. If it has a relevance, for example, to the probability of the person’s paying back the loan—and I do not know what the purpose of this would be—then the distinction could be sustained, I think.
Senator Olson: But the distinction and reason for discrimination is very specific. It is age only. There is not any other reason that would necessarily be involved.
Senator Grosart: It would be the same with the voting age or drinking age.
Mr. Strayer: The voting age, I think, is specifically covered in here. I am sure restrictions on the drinking age could be defensible under clause 25 with respect to the peace and security of the public or something like that. I am not quite sure what the purpose would be of the age stipulations of the Farm Credit Act.
Senator Olson: It is very simple. If you get past 40 it is presumed you don’t have as many years to pay the loan back.
Mr. Strayer: Well, that is a very rational basis for making an age distinction. I am sure the same thing would apply, for example, to an airline pilot who is 75 years of age and who wanted to fly again. I think perhaps the court might say that at 75 you should not be flying a DC-9.
Senator Forsey: It looks as if the judges will have to bone up on American jurisprudence.
Senator Olson: My next question then is where does discretion come into play, because if you read the two clauses together, there is no disretion as to what is a discriminatory act simply because of age and age alone.
Mr. Strayer: It does relate back to the rights set out in clauses 6, 7 and 8, and you are limited by the context of those rights. For example, freedom of speech—it is perhaps hard to imagine a resriction on freedom of speech based on age that could be defensible.
Senator Olson: But it deals with equality before the law and in all the regulations, and it says in clause 9 that you cannot be treated differently because of age. I am asking whether that is compatible with some of the laws now in effect where age is the single and sole basis for discrimination.
Mr. Strayer: Well, it is our best estimate, taking the most careful view we can of the thing, that this would be interpreted in a sensible way, as it has been elsewhere, and that equal protection of the law does not mean that every person, no matter what his circumstances and no matter what the situation might be, has to be treated the same as the next person. What it does mean here is that there has to be some rational
basis for making a discrimination between him and the next person.
Senator Bosa: Is it not a form of collateral?
Mr. du Plessis: Surely we have to look at the real meaning and the commonly accepted use of the word “discrimination.” Being treated differently does not necessarily mean being discriminated against. I do not have the dictionary with me at the moment, but perhaps I could undertake to look up the connotation of the word “discrimination.”
Senator Forsey: Professor Kwavnick, in his remarks, said that you cannot make any constitution idiot-proof.
Senator Connolly (Ottawa West): Your comment then, Mr. du Plessis, is that “discrimination” involves the element of unfairness.
Senator Grosart: But you discriminate between two colours–or between two women.
Mr. du Plessis: But that is distinguishing between them.
The Chairman: It is an interesting debate, but perhaps we should move on.
Senator Fournier (de Lanaudière): Is there a contradiction, Mr. Chairman, in that the third paragraph of clause 8, deals with the right to acquire and to hold property, while I see that section 92.13 of the BNA Act shows it as being in the exclusive powers of provincial legislatures. I see a little restriction here—”his or her exercise or enjoyment of those rights as are reasonably justifiable,” and so on. Who will decide whether it is reasonably justifiable or not? Is there not a contradiction there between the two texts?
Mr. Strayer: On the first part of the contradiction, of course, this does deal with matters which are very much within provincial jurisdictions over property and civil rights. Again this section does not come into effect by virtue of provisions of section 131 until a province has adopted it in the first instance or until it has been a subject of a constitutional amendment. So this section, while once it is adopted will limit in certain respects the freedom of action of provinces with respect to property and civil rights, will not have any effect until either the province has adopted it or until it has been entrenched in the Constitution by the constitutional amending procedure, in which presumably the province would have something to say.
The Chairman: Honourable senators, in view of the time, I would hope that we might finish ~ur questioning on the Bill of Rights sections this afternoon. I realize it has been a long day and I do not want to keep people too late. We have another long day tomorrow and the day after. I should like Mr. Cowling to lead us through the language sections.
Mr. Cowling: We have just scratched the surface of the Bill of Rights sections, Mr. Chairman.
The Chairman: All right. We may not be able to do that. In any event, let us bull along as far as we can.
Senator Godfrey: Mr. Chairman, may I make a short comment on clause 8, bouncing back again to Senator Bosa where he pointed out that the right to move only applied to the citizen, and he suggested that it should also apply to landed immigrants. I want to point out that the provisions of the Immigration Act regulations give actual points to immigrants who agree to go and live in certain parts of the country. If you made this apply to landed immigrants, it would not be possible any longer to have that kind of provision in the law. There are good reasons why landed immigrants should agree, or be required, to go to a certain place and live there for a short time. Whether that is the right provision, I am not sure.
Senator Grosart: Mr. Chairman, returning to the effect of clause 25 on clauses 6, 7 and 8, I realize that great difficulty anyone. would have in attempting to entrench the rights of any individual where the exercise of that entrenchment might conflict with the rights of another individual. I realize the difficulty, but I would ask this question: Is the effect of clause 25 on clauses 6, 7 and 8, and perhaps on other clauses as well, that any of these fundamental freedoms or other freedoms can be limited by existing or subsequent legislation of a province or of the Parliament of Canada, where the rationale is, to use the phrase in clause 25, “the interests of the rights of others”?
Mr. Strayer: Yes, that is possible, and if that is contested the courts will eventually have to make a decision as to whether the law comes within clause 25.
Senator Grosart: That is why it has always been so difficult to entrench rights and freedoms.
Mr. Strayer: Yes.
Senator McIlraith: Mr. Chairman, I want to pursue a question asked by Senator Fournier dealing with clause 8, which states:
Every citizen of Canada, wherever the place of his or her residence or domicile, previous residence or domicile, or birth, has …
—the right to … pursue the gaining of a livelihood in … any province … subject … only to such limitations on his or her exercise or enjoyment of those rights as are reasonably justifiable otherwise than on the basis of the place of his or her residence—
There is legislation in the province of Quebec dealing with the earning of a livelihood and affecting electrical companies, plumbing companies, construction companies, and so on. A residence of Ontario cannot earn a livelihood in Quebec. This is a fairly active subject, and one which is rather extensive at the moment.
Assuming this bill is enacted into law, is it envisaged that that legislation would all have to come before the courts for interpretation, subject only to the limitations provision, and the interpretation of that? I just do not understand how it is
envisaged that this clause could come into operation. I have picked out just the one example.
Mr. Strayer: We have to assume in the first place that the section is in effect because either it has been adopted by Quebec or it has been the subject of an amendment to the Constitution. So we assume it is in effect. If, then, regulations such as the Quebec construction regulations were challenged by possibly some contractor or some skilled workmen who wanted to go across and work in Quebec and was turned own, say he had ben given a kind of certificate which did not really entitle him to work as other people there, which I believe is what is happening, then he could seek a declaration in the courts that the construction regulations were contrary to section 8. There would then be a debate as to whether the regulations as devised really legitimately are designed to bring about order in the construction industry and nothing else or whether they are also designed to discriminate against people from out of province.
Senator McIlraith: That answer deals with individuals, but the real problem is a little more extensive. Contracting firms which have incorporated under Quebec legislation, and have complied with Quebec company laws and various other regulations for doing business in Quebec, cannot compete for work because they come from the province of Ontario. The residence of the corporation is in Quebec. It is incorporated there. Is it envisaged that the process of adoption of this part of the bill before us would eliminate the difficulty or is it envisaged that it will come before the courts and ultimately be resolved through judicial interpretation.
Mr. Strayer: Well, it is difficult to speak to the possibility of the subject being put before the courts in its present context. It is hard to predict whether that will happen or not. I think, taking a realistic view that it may be very difficult for anyone to challenge regulations like that on the basis of the existing constitution, so the position would certainly be much clearer if this section were adopted. But whether it is adopted will depend on these other things happening, and in the meantime the problem may go unresolved. It is hard to say.
Senator Connolly (Ottawa West): What you are telling Senator McIlraith is that if these provisions were to be adopted, then it might be easier to challenge what is done under the construction regulations of a given province.
Mr. Strayer: Yes. From what I have seen of the Quebec construction regulations, I think there may well be a basis for attacking them on the basis of this clause.
Senator Godfrey: Is it meant to include an incorporated company?
Mr. Strayer: No.
Senator Godfrey: So it would not include a construction company getting a contract.
Mr. Strayer: No. They are in Quebec anyway in Senator McIlraith’s example.
The Chairman: Does this not only come into effect when the province has accepted it?
Mr. Strayer: Yes.
Senator Lang: Would that not be a federal undertaking if it were carried on in both provinces?
Senator McIlraith: That is the point.
Senator Lang: My question is actually No. 15 on counsel’s list. It was as to why, in that non-discrimination clause, clause 9, those rights and freedoms were confined to clauses 6, 7 and 8; and the only reason we could presume that was because you had to go on discriminating under the language clauses in clause 21. Is that the reason they are so confined?
Mr. Strayer: Well, it is a very germane question. It is there, probably, because it is in the Canadian Bill of Rights; but it is in a different position in the the Canadian bill of Rights. It is in, I think, section 22 of the Canadian Bill of Rights, and it has had a somewhat unfortunate effect in the Canadian Bill of Rights, because it has been held to qualify all of the rights listed in that section of the Canadian Bill of Rights. Let me just get my bill. It is section 1.
It can be argued under the Canadian Bill of Rights that there is no absolute right to freedom of speech. It is just that you cannot be denied freedom of speech on the basis of race, national origin, colour, religion or sex. Those are the grounds listed in that bill. That, I think, was not the intention of Parliament when it put it in there, at least from our study of the records of the debates at that time. In other words, as it is in there now, it has served somewhat to limit the content of the rights in that section. We thought that we could not eliminate that phraseology completely, because it was in the Canadian Bill of Rights, but that we should put it in in a way in which it would enhance rights rather than limit them. So the construction of the bill is such that the rights in clauses 6, 7 and 8 are general rights which exist and cannot be taken away, except on their own terms. They are not rights which are only protected against racial discrimination or religious discrimination, or that sort of thing. They are general rights.
Clause 9 is in, I think, it is fair to say, for greater certainty, so as to preserve the original intent, which was to make sure that whatever other content ther was—for example, the equal protection of the law—it clearly meant that you should be treated equally, regardless of your race, national or ethnic origin, language, colour, religion, age or sex; but it does not limit protection of the law to those categories. There could be other denials of equal protection of the law which might be based on a person’s profession, or something like that, which could still be a subject of attack under clause 6. Clause 9, however, is there for greater certainty and to enlarge upon the meaning of clauses 6, 7 and 8.
Senator Yuzyk: Mr. Chairman, I have before me the new Constitution of a federal state. It is the Constitution of the Union of Soviet Socialist Republics adopted at the seventh special session of the Supreme Soviet of the USSR on October 7, 1977. It is very interesting to compare the section with which we are now dealing with the section they have in the Soviet Union, particularly chapter 7 which is headed, “The basic rights, freedoms and duties of citizens of the USSR.”
Much of this we could not apply in our country. However, I note that there are about 20 articles dealing with rights and freedoms, and 11 articles dealing with duties of citizens. As I look at this bill, there is no reference to duties of citizens. I am wondering whether the drafters of this amended constitution took into consideration the duties of citizens, because every right is supposed to have a corresponding duty, responsibility or obligation.
The Chairman: May I say that I never expected to hear Paul Yuzyk ask us to imitate the Russians.
Senator Yuzyk: I do not think we should imitate them, because we would not perform many of these duties here anyway. But that is a consideration that is rather important, that citizens should have duties as well as rights.
Mr. Strayer: I have to confess that we never looked at the Soviet model in developing this bill. I was not even aware that it had been recently revised. We had no particular instructions, to the best of my recollection, on the subject of writing duties into the Constitution. I suppose there are a number of implicit duties in the Constitution, in the area of fundamental rights, for example, because what is one man’s freedom is another man’s limitation. We have to accept that other people arc going to exercise their rights and it may not always be convenient for us. There are, of course, some specific political duties set out in the bill, but it is not a general issue that we had considered, I must confess.
The Chairman: Mr. Cowling, do you wish to lead us through perhaps another 10 or 15 minutes? Does the committee wish to carry on later than 5 o’clock?
Hon. Senators: No.
The Chairman: I think we should try to wind up our proceedings at about 5 o’clock.
Senator Connolly (Ottawa West): Mr. Chairman, before we start anything else, I wonder whether the committee should consider the program for tommorow. I am thinking about Professor Lederman. Since he is from out of town, perhaps the witnesses who are with us today will understand that we should give him the courtesy of giving us his evidence in the first instance. It is probably a source of some inconvenience to him to come here. I believe he is doing us a favour by coming. I think the same applies to the witness on Thursday morning. I do not think we should make any assumptions on what should be done until the committee considers it.
The Chairman: There has been no opportunity for the steering committee to consider the matter. Notices have gone out calling the meeting for tommorow morning at 10 o’clock with Dr. Lederman as the witness, and perhaps we should proceed on that basis. We could discuss with Mr. Strayer, Miss MacDonald and Miss Desjardins the possibility that we might be able to call them back perhaps tomorrow afternoon. Our problem lies in knowing how long we shall be with Dr. Lederman. If this causes problems with our present witnesses, we may have to postpone further discussion with them until a later time. I was proposing to have a discussion with Mr. Strayer on the matter. I would suggest that we proceed with Dr. Lederman tomorrow morning because of the reasons mentioned by Senator Connolly. Is there any comment?
Senator Godfrey: Leave it in the hands of the steering committee.
The Chairman: The steering committee will, I hope, meet either late this afternoon or this evening. We will try to deal with these matters as they come along.
Senator Bosa: When shall we have the benefit of the experience of Mr. Strayer?
The Chairman: I was going to discuss that with him. It would be desirable from our standpoint if the present witnesses could stand by tomorrow.
Senator Connolly (Ottawa West): It is hard to assess how long we shall be with Professor Lederman. Perhaps our present witnesses could come tomorrow afternoon, and perhaps we should be able to tell them by mid-morning.
The Chairman: That would certainly be most helpful.
Senator Connolly (Ottawa West): The same arrangment could apply to Thursday.
Mr. Strayer: I should say that Miss MacDonald may have some time problems, but Miss Desjardins and I can be here.
Senator McElman: Mr. Chairman, it might be useful if Mr. Strayer or one of the other witnesses could be present while Dr. Lederman is giving his testimony.
The Chairman: I am not sure that we could ask them for that much time.
Senator McElman: My thought is that they will be following immediately after and there may be questions that will arise from the earlier meeting. It would mean a saving of our time, perhaps not so much of theirs.
The Chairman: We can make that request. If it is possible, I am sure they will accede to it. Perhaps we should now adjourn for the afternoon. We shall meet tomorrow morning at 10 a.m.
The Committee adjourned.
From the Department of Justice :
Dr. B.L. Strayer, Q.C., Assistant Deputy Minister (Public Law) and Special Counsel on the Constitution;
Alice Desjardins, Q.C., Director, Advisory and Research Services;
Miss E.I. MacDonald, Q.C., Senior Counsel.