Document Information

Date: 1978-10-10
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 30th Parl, 3rd Sess, No 20 (10 October 1978).
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SENATE
HOUSE OF COMMONS

Issue No. 20

Tuesday, October 10, 1978

Joint Chairmen:
Senator Maurice Lamontagne
Mark MacGuigan, M. P.

Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the

Constitution of Canada

Report to Parliament

Third Session of the
Thirtieth Parliament, 1977-78

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SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA

Joint Chairmen:
Senator Maurice Lamontagne
Mark MacGuigan, M. P.

Representing the Senate:

Senators:

Louis Beaubien
Florence Bird
Azellus Denis
Jacques Flynn
Eugene Forsey
Sarto Fournier (de Lanaudière)
Daniel Lang
Allister Grosart
Léopald Langlois
George McIlraith
Joan Neiman
Duff Roblin
George Smith (Colchester)
George van Roggen

Representing the House of Commons:

Messrs.

Perrin Beatty
Herb Breau
Andrew Brewin
Pierre Bussières
Charles Caccia
David Collenette
Dennis Dawson
Jean-Robert Gauthier (Ottawa-Vanier)
Ralph Goodale
Raynald Guay (Lévis)
Ray Hnatyshyn
Claude-André Lachance
Gérald Laprise
Arthur Lee
Allan Lawrence
(Miss) Flora MacDonald (Kingston and the Islands)
Robert Stanfield
George Whittaker

G. A. Birch
Patrick Savoie

Joint Clerks of the Committee

Other Senators and Members who served on the Committee:

Senators:

Martial Asselin
Rhéal Bélisle
Sidney Buckwold
John Connolly
Royce Frith
Henry Hicks
Paul Lafond
A.H. McDonald
Gil Molgat
W.J. Petten

And Members:

Douglas Alkenbrack
Harvie Andre
Walter Baker
James Balfour
Rod Blaker
Edward Broadbent
Larry Condon
Paul Dick
Walter Dinsdale
C.-A. Gauthier
Bruce Halliday
Robert Howie
Gaston Isabelle
Stanley Knowles
Roch La Salle
Gus MacFarlane
James McGrath
Martin O’Connell
Steven Paproski
Raymond Savard
Ian Watson

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Preface

The Joint Committee was first organized on the day on which Parliament adjourned for the summer. The decision to hold hearings and to prepare a report during the parliamentary recess caused great practical difficulties.

The work of the Committee could not have proceeded within the time available without our small but exceptional staff: Peter Dobell of the Parliamentry Centre, who arranged for the witnesses and was the principal staff drafter; Philip Rosen and Françoise Coulombe, of the Library of Parliament, who headed our research effort and also participated in the drafting; and Sandy Birch and Patrick Savoie, the Joint Clerks, who arranged all the other things well for the Committee. We are most grateful for their help.

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REPORT TO PARLIAMENT

The Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada has the honour to present its

SECOND REPORT

On June 12, 1978, the Prime Minister tabled a document entitled “A Time for Action” which set out “principles for the renewal of the Canadian federation” and on June 20, Bill C-60 was given first reading. On June 27 the House of Commons and on June 29 the Senate passed resolutions establishing a Special Joint Committee of the Senate and the House of Commons to “examine and report upon proposals that have been and in the future are from time to time made public by the Government of Canada, on subjects related to the Constitution of Canada”. On June 30, the Committee held its organizational meeting.

The first full meeting of the Committee was held on August 15 and 34 meetings have been held since then.

An Interim Report

When the Minister of State for Federal-Provincial Relations appeared before the Committee on August 15, he drew attention to the unusual manner of proceeding—the submission of a Bill rather than a White Paper, which was then referred to the Committee following only first reading. The Minister stressed that the approach was deliberate—a Bill to emphasize the urgency which the Government attached to constitutional reform; the reference of that Bill to committee before second reading to demonstrate that “the government is not only open to every constructive and helpful comment and suggestion, it very much wants them”.

In this interim report we have sought to offer constructive comment. But we have also been very much aware that the subject is vast and complex. We have concluded that we should only offer our views where we have sufficient evidence to present balanced and responsible comments. Moreover, we know that a meeting of First Ministers on constitutional change, which is bound to have a major effect on the Government’s future action in this field, will take place at the end of this month. Finally, the report of the Task Force on Canadian Unity will not be available until at least December. For all these reasons, we are not now in a position to submit a final report.

Work Schedule

The decision to begin hearings in mid-summer complicated the Committee’s work. Some witnesses were unavailable; others could not find time to prepare submissions which would take proper account of the detailed nature of the Government’s proposals. Nevertheless, the Committee received much useful testimony. To everyone who responded to the Committee’s request for written submissions or agreed to appear as witnesses, we express our appreciation.

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In addition to meeting with federal ministers and officials, the Committee has already heard from representatives of some Provincial and Territorial Governments, several national organizations and many other experts and knowledgeable witnesses. A list of those who have appeared as witnesses is attached as Appendix “A”.

In response to its letters of invitation and advertisements in newspapers across the country the Committee has received some four hundred replies from concerned citizens. Further communications continue to be received daily. A list of all who have submitted briefs or letters to date to the Committee is attached as Appendix “B”.

Future Work

The meetings already held have provided a national public forum for discussion of constitutional questions and specific commentary on the Government’s proposals. Meetings with federal ministers and officials elaborated and clarified the Government’s proposals. The Committee has also offered an opportunity to present their views to Provincial and Territorial Governments. Representatives of the Government of the Province of British Columbia have appeared. A scheduled meeting with the Premier of New Brunswick had to be postponed because of the impending provincial election. Representatives of the governments of the Yukon and Northwest Territories have also met the Committee and we have received written reactions from Premier Moores of Newfoundland. Other premiers have indicated they wish to comment on the federal proposals first at the First Ministers’ meeting at the end of October. After that date, however, it might be desirable and possible to arrange meetings with representatives of other provincial governments. Our meetings with representatives of national organizations and other experts have also provided an important sounding board for public opinion.

We believe the Committee’s work should be continued in the new session. However, the Committee is dealing with a large volume of evidence on subjects of great complexity, and will need further expert assistance.

Recommendation 1.

The Special Joint Committee on the Constitution of Canada should be reconstituted in the new session and the new Order of Reference should include a provision empowering the Committee to retain the services of advisers.

Scope of the Report

Because the Government has presented Bill C-60 as a set of proposals for discussion rather than as an ordinary bill, the Committee assumed that the Government would not proceed with this legislation early in the forthcoming session unless it received broad support. Such broad support does not exist at the moment, although some of the principles enunciated in the Bill were well received. While objections to certain parts of the Bill are related to its wording rather than its intent and

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substance, several other elements were vigorously challenged by witnesses. We decided, therefore, in this second report to concentrate on the clauses where a measure of consensus exists.

Although the Committee has already received thoughtful testimony, we are in a position to attempt detailed but preliminary conclusions and recommendations only on some aspects of the Charter of Rights and Freedoms. On other elements of the proposals we can only make some general comments.

Subsequent to tabling Bill C-60, the Government released on August 8 a paper entitled “The Canadian Constitution and Constitutional Amendment”. While the Committee has received insufficient testimony to take any position on this difficult issue, we share the Government’s conviction that an agreed amending procedure is central to constitutional reform.

The Minister of State for Federal-Provincial Relations several times asserted that, although the federal Government had not made specific proposals about the division of powers, it recognized that this was a major element of constitutional reform which it was ready to discuss at any federal-provincial meeting. This is an area on which the Committee has received little testimony, but we do recognize its importance as part and parcel of the process of constitutional reform and will be seeking more information and views.

The Need for Constitutional Reform

The need for constitutional reform and for an appropriate amending formula to permit patriation of the Canadian constitution is apparent and is seen by many people as urgent. Nevertheless, unanimous agreement at the federal-provincial level is even less likely than in the past. Indeed, the basic goal of the present Government of the Province of Quebec is not constitutional reform but separation from the rest of Canada. Thus, in the forthcoming negotiations, a most important partner cannot be expected to play its full role. This situation may lead to the preservation of the status quo, which the Quebec government could be expected to exploit. This paradox was raised by Professor Leon Dion, a prominent political scientist from Laval University. He said:

“Therefore, we have to decide whether it would be better to carry out the revision of the Constitution immediately, without the participation of the Quebec Government, or whether on the contrary the whole matter should be postponed as long as Quebec, through a referendum or otherwise, would not have succeeded in expressing a unanimous opinion. By waiting for Quebec, we risk causing a serious delay in the reshaping of our country, but by acting without Quebec, we risk doing useless work and reaping sour grapes.”

This dilemma exists but it is probable that a substantial majority of Quebecers want a renewed federalism sooner

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rather than later. Canadians should not get the impression that the constitution cannot be changed.

The Process of Constitutional Reform

Two aspects of the process of constitutional reform originally proposed by the Government have been of particular interest to the Committee. First. Bill C-60 makes the implicit claim that the Canadian Parliament has the right to change certain federal institutions unilaterally. Secondly, the Government has proposed an approach to constitutional reform based on two different stages. Those two issues will be considered in turn in this report.

(a) Parliament’s Right to Act Unilaterally

When discussing the Order of Reference in the House of Commons on June 27, the Prime Minister said that “the Parliament of Canada has, under the present Constitution, the power to amend the Constitution . . . except in certain areas.” He proposed that “we exercise our rights under Section 91” to replace the Senate with a House of the Federation and to codify those sections concerning the Crown. Subsequently, the Minister of State for Federal-provincial Relations and the Minister of Justice claimed that, while the Government was seeking the agreement of the provinces to these constitutional changes, the federal Parliament had the right unilaterally to amend these elements of the British North America Act.

The Committee sought the views of constitutional experts on this point. They were not in agreement, some challenging the Government’s position, others agreeing that parliament had the right to act unilaterally.

In the face of conflicting opinions held by recognized experts the Committee adopted the following resolution:

“That this Committee report to the Senate and House of Commons its concern with the position of the Government to the effect that it can proceed unilaterally, that is, by a mere Law of Parliament, with the provisions of Bill C-60 respecting the Senate of Canada and the position of the Crown.”

“That the Committee include in its report a recommendation that the Government consider the advisability of referring these provisions to the Supreme Court of Canada for a decision as to whether they are intra vires the federal government acting alone, either through unilateral action by the Parliament of Canada under Section 91(1) of the B.N.A. Act, or by means of a joint address from the Parliament of Canada to the Parliament of the United Kingdom without the agreement or substantial compliance of the governments of the provinces.

On September 14 the Minister of Justice announced that the Government would seek an advisory opinion from the Supreme Court with regard to the Senate but would not refer the question of amending the sections of the B.N.A. Act dealing with the Crown and the Governor General since no change of role or powers was intended.

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The Committee welcomes this reference of the constitutional legality of the Senate provisions of the Bill to the Supreme Court. It notes, however, that the advisability of unilateral action in such matters is a separate issue.

(b) The phases of constitutional reform

The government has proposed two stages of constitutional reform. Phase I would be limited mainly to the charter of rights and to federal institutions covered by Bill C-60 with a target date of July 1, 1979. Phase II would be devoted to the division of powers between the federal and provincial governments with a target date of July 1, 1981. This approach raised serious concern.

Provincial premiers expressed their position in Regina on August 10 as follows:

“It was agreed that discussions on constitutional reform cannot be compartmentalized into artificial divisions. Institutional and jurisdictional problems interact in such a way that they must be considered together … A comprehensive review is unlikely to be successful if arbitrary deadlines are imposed.”

Evidence presented to the Committee raised the same concern. Many Canadians feel that changes in the role and composition of federal institutions should be considered in the light of concrete proposals for a new division of powers because they are closely inter-related. For instance, if provincial powers were to be substantially extended, the case for strong provincial representation in Parliament and for direct input into its decision-making would be considerably weakened. That case would become much stronger however, if a new division of powers were to extend significantly the areas of federal responsibility.

The Committee agrees with the government’s desire to proceed with celerity and notes Mr. Lalonde’s statement that formal discussions on the division of powers would begin during the federal-provincial conference at the end of October. The Prime Minister has since expressed his views in his recent letter to Premier Allan Blakeney:

“There is no necessity for the “jurisdictional problems” to be considered apart from “institutional” areas: discussion of the two can begin and can proceed simultaneously. We think, however, that action that can constitutionally be taken in Canada, by Parliament acting within its own powers, should be taken. It should not have to wait upon other revisions that may require more time to consider and that can only be completed by the British Parliament. The Federal Government does not any more than the Premiers, want an “unrealistic” or “rigid” time-table.”

The Committee notes the clarification made by the Prime Minister and considers that the proposals on the division of powers to be put forward at the end of October will help

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greatly in its future work. However, some witnesses seriously doubted the possibility and the desirability of Parliament’s dealing with all the matters covered by Bill C-60 before July 1, 1979 if concurrent consideration of the two phases and federal-provincial consultations are to take place as they should.

The Preamble and the Aims of the Federation

The Committee agrees with the intent and the goals expressed in the preamble of Bill C-60 and in the section dealing with the aims of the Federation. We believe, however, that this part of the Bill is repetitive and complicated and reads like an ordinary piece of legislation. We prefer the approach suggested by Marcel Faribault and Robert M. Fowler when they wrote:

“A constitution is not an ordinary statute. Its spirit is more important than its letter. It shold, of course, be precise and carefully worded. But it can afford to speak with inspiration and some emotion to the people whose life it governs. Its form and style need not follow the arid legalisms and technicalities of a tax statute. It should be cast in words that appeal to people’s emotions and inspire them to some consciousness of a national identity. If, thereby, the task of judges who may be required to interpret the constitution is made unfamiliar and somewhat more difficult, this is no serious objection. This is what judges are for, and Canadian judges will respond to inspiration like other people. (Ten to One—the Confederation Wager) McClelland and Stewart Limited, 1965, p. 27) ).

The Committee recommends that the two parts of the Bill be redrafted in this spirit and in a more concise form.

We also recommend the recognition of economic rights as illustrated by the principles set out in the Universal Declaration of Human Rights. Further, although we recognize that the concept of multiculturalism is implicitly covered by the phrase “equal respect for the many origins, creeds and cultures…that help shape Canada,’’ we urge that the word “multiculturalism” should also be included.

Recommendation 2.

The Preamble and Statement of Aims of the proposed Bill should be redrafted for conciseness, style and content.

Later in our report we propose a further change in this part of the Bill concerning the reference to the English and French languages.

We strongly urge that consultation take place during the process of revision and redrafting. Outside experts should be invited to participate in this new exercise and our Committee could be used as a sounding board.

The Canadian Charter of Rights and Freedoms

The purpose of the Canadian Charter of Rights and Freedoms (clauses 5-29 in Bill C-60) is to affirm “that in a free and democratic society there are certain rights and freedoms which must be assured to all of the people of that society,”

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individually and collectively. This purpose is to be accomplished by elevating them and removing them from the ordinary exercise of legislative and administrative authority. In this respect the Charter represents an advance over the present Canadian Bill of Rights, itself a crucial innovation in our law.

We believe a charter of Rights and Freedoms is generally supported by Canadians. It also has our endorsement.

A few witnesses said that an entrenched bill of rights would undermine the rightful prerogatives of Parliament and give the courts too much latitude. We do not feel the matter involves an opposition between Parliament and the courts. Rather a constitutionally entrenched bill of rights combines the competences of both for the public benefit. The narrow limits within which courts now “legislate” would be somewhat broadened, but only where the people most need protection from governmental action—their fundamental rights and freedoms.

The unambiguous constitutionalization and effective entrenchment of a charter would mark another major advance in our law. We therefore recommend the adoption of a charter.

Recommendation 3.

A Canadian charter of Rights and Freedoms should form an integral part of the Constitution of Canada, but the proposed Charter should be redrafted.

(a) Human Rights

To be effective, we believe a charter must enjoy a clear supremacy over ordinary legislation. Since that supremacy has been denied to the predecessor Canadian Bill of Rights by the courts through the so-called “frozen concepts” doctrine, the factors causing that denial must be avoided in the proposed Charter. A principal cause was the verbal tense of the initial declaratory statement (“there have existed and shall continue to exist“). The Charter is an improvement over the Bill of Rights because it discards the past tense (“There have existed”) in the declaration, but it is still a mistake to employ the modal verb “continue” (“shall continue to enjoy“) in clauses 6 and 7. Since this verb contains a past as well as a future reference, it thus implies that the protected rights and freedoms should exist in the future only in the way and to the extent that they have existed in the past. The unadorned future imperative verb (“shall enjoy”) accomplishes all that is necessary without implying any limitation in the scope of the protection. The French version of the Charter uses only the verb form jouit, “enjoys”.

Similarly, the remedial provision in clause 23 is still too weak to remove all doubt that Parliament intends the Charter to be an overriding statute. While it improves upon section 2 of the Bill of Rights by dropping the implication that the only recourse for the courts is to construe any offending laws consistently with the Bill, we insist upon a provision that insofar as any law is inconsistent with the Charter it shall be pro tanto invalid or inoperative.

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Recommendation 4.

To ensure that the provisions of the proposed Charter are interpreted by the courts as overriding other legislation, clauses 6, 7 and 23 should be redrafted.

While the words “individual” and “person” refer to the same natural entity, we believe that it is the human person that is the proper subject of rights and freedoms. The word “individual” connotes the individuation or distinctness of the human being, but not his or her dignity.

We are also troubled by the limitation to natural persons or individuals of the right to the use and employment of property, and the right not to be deprived thereof except in accordance with law. We can see no prima facie reason why corporations and groupings of persons should be denied this protection. Moreover, the broadening of the protection would meet the concern expressed before the Committee by Inuit spokesmen, who feared that the limitation to individuals would deprive their preferred form of property holding of the protection of the Charter. This is a further reason for the redrafting of clause 6.

The right not to be deprived of the use and enjoyment of property is qualified by the phrase “except in accordance with law.” We would ask to have considered whether the concept “due process of law”, as in the present Canadian Bill of Rights, would not provide more satisfactory protection.

We are puzzled by the introductory words of clause 7, “In addition to the fundamental rights and freedoms declared by section 6”. In our view the legal protections in clause 7 are specifications of some of those in clause 6 (principally due process of law) rather than additions to them. There is a similar problem with clause 9, which as located is discontinuous with clause 6, whereas it should be linked with the principle of equal protection of the law in that clause.

Recommendation 5.

The proposed Charter should be revised to indicate more clearly the relationships among different clauses.

We also heard evidence to the effect that the legal civil liberties protected are selective and incomplete. We share this concern, but we have some confidence that the appropriate expression of these rights will take place through the courts, given the aid of both parts of our recommendation 4. We would therefore propose two amendments to clause 7.

As interpreted by the courts, the pre-trial rights to retain and instruct counsel without delay appears often ineffectual as applied. We believe that the deficiency lies largely in the lack of any stated obligation on the part of the state to facilitate retention and instruction of counsel.

Moreover, in view of the increased concurrency of legislation in the criminal and quasi-criminal fields, we are convinced

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that the right not to be placed in double jeopardy must be explicitly guaranteed.

Recommendation 6.

Clause 7 should be redrafted to provide for the obligation to facilitate retention and instruction of counsel and for the protection against double jeopardy.

We have grave reservations about clause 8 of the Charter. It would create two new rights, but only for citizens. The first is the right to move to and reside in any part of Canada, the second the right to acquire and hold property and to pursue the gaining of a livelihood anywhere in Canada. We can see an expansion of freedom in the provision that the two rights are protected from limitation on the basis of residence or domicile, previous residence or domicile, or birth. But we question whether the restriction of such rights to citizens alone belongs in the Constitution.

While landed immigrants currently have the same rights as citizens to move, reside, hold property, and work everywhere in Canada, we are aware that geographical limitations on immigrants as conditions of their admission have been considered in recent years. There may be circumstances which justify such limitations, but we would not wish to engrave in the constitution a permanent distinction between the rights of citizens and landed immigrants even to gain for citizens the expanded liberty referred to above.

We are strengthened in our reservations about clause 8 by its relationship to clause 6 and 9 respectively. In clause 6 the right to the use and enjoyment of property, to equality before the law and to the equal protection of the law is guaranteed to every person, whether citizen, landed immigrant, temporary resident or mere visitor. In other words, section 6 guarantees to everyone substantially the same rights as are recognized by clause 8 as belonging only to citizens. Similarly the injunction in section 9 against discrimination because of national or ethnic origin might be interpreted to be inconsistent with the limitation of section 8 to citizens. We can foresee a century of acrimonious litigation if clause 8 is allowed to stand.

This latter consideration might be resolved by making clause 8 subject to clause 6, but that would not remove our first concern, viz., the establishment of a constitutional preference for citizens in an area where so permanent a distinction is unwarranted. We therefore firmly recommend that clause 8 be withdrawn.

Recommendation 7.

Clause 8 of the proposed Charter should be deleted.

Various additions have been proposed to the prohibited grounds of discrimination in clause 9, but with one exception we prefer to remain with the universally accepted grounds of “race, national or ethnic origin, language, colour, religion, age

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or sex”, as in clause 9. Grounds such as physical or other disability or sexual preference might be meaningful in legislation which provides protections with respect to employment, accommodation, and the provision of goods and services, as much human rights legislation does. But the political and legal rights and freedoms contained in clauses 6 and 7 would not be expanded by the addition of these grounds, since they are already expressly guaranteed by those sections to every person without exception.

The further ground of marital status has, however, a greater plausibility. It is contained among the prescribed grounds of discrimination in section 3 of the Canadian Human Rights Act, and is also found in most of the provincial human rights acts. We certainly favor it as a goal. At the same time we are concerned that its inclusion could create possible problems for differential treatment of single and married persons in tax laws or pension legislation or unemployment insurance. We recommend that the ground of marital status be added to the prohibited grounds of discrimination if the Government can resolve this practical problem.

With respect to the electoral rights contained in clause 10 and the fundamental parliamentary rules established by clauses 11 and 12, we have also received suggestions for amendment. However, we prefer to retain these rights in the relatively minimal form in the Charter rather than to encourage judicial involvement in political questions by providing further detailed rules. These should be left to ordinary legislation.

We find substantial problems with clause 24. On the one hand, clause 24 might be interpreted to allow anyone at anytime to obtain a declaration in the abstract, even in the absence of a case or controversy. In our view this would amount to an abuse of the courts. On the other hand, clause 24 appears to make the protected rights ones of last resort. Any request for a declaration might be met by an argument that some other remedy is available to the litigant and that he must pursue that remedy before proceeding. At the very least, such an issue could consume several days of court time. The problem is an awkward one, but we believe it can be met by redrafting.

In effect, the courts should have power to grant whatever remedy may be appropriate in the circumstances, including pecuniary damages, to enforce the protected rights and freedoms. This should explicitly include the right to hold evidence inadmissible in the interests of justice where it has been obtained by means inconsistent with the protections of clauses 6 and 7. Moreover, the courts should have the specific obligation placed upon them to grant an effective remedy where a denial of rights has occurred. They must not be allowed to decline to intervene.

Recommendation 8.

Clause 24 should be redrafted to ensure that it requires the courts to provide a remedy where there is a denial of rights and that the remedy is adequate.

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

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

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

Recommendation 9.

Clause 25 should be replaced by a clause which exactly specifies permissible limitations on protected rights and freedoms by the War Measures Act or similar legislation, and the Government should be required to justify to Parliament the invocation of such legislation.

Clause 26, providing that the Charter shall not derogate from existing rights and freedoms, is a useful one, but, in singling out the native peoples for special mention, might unintentionally restrict their rights by referring only to the rights and freedoms they may have acquired by virtue of The Royal Proclamation of October 7, 1763. In our view, it would be preferable to omit the reference to this particular document.

Recommendation 10.

Clause 26 should be redrafted to omit the reference to the Royal Proclamation of 1763.

We have resisted invitations to include economic rights in the Canadian Charter of Rights and Freedoms. In our view, the role of the Charter is to limit the powers of governments, not to increase them. In any event, we have suggested that economic rights be included in the clause on the aims of federation.

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

Recommendation 11.

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

Second, we believe there should be provision for reasonable access to government documents and records. We would not wish to attempt to spell out in a constitution precise requirements as to the ready availability of information, but we think that some obligation on the government to inform the people should be made explicit in a charter of rights. Without knowledge, there can be no democracy.

Recommendation 12.

The proposed Charter should provide that people are entitled to reasonable access to documents of governments and government agencies.

(b) Linguistic rights

The Charter of rights and freedoms contained in Bill C-60 also provides meaningful constitutional guarantees for the use of English and French and in the field of education. The Committee endorses what Mr. Claude Ryan, the leader of the Quebec Liberal Party, has said about those provisions in the attachment to his letter to the Committee:

“With respect to language, if the federal bill is adopted, the country will have taken a decisive step towards justice and equality. In certain matters, it sanctions the official character of English and French. New Brunswick and Ontario now both fall under the provisions of section 133 (B.N.A. Act) which had hitherto been meant for Quebec only. The bill recognizes new language rights for francophones in certain courts of the country, in education, in federal government services and institutions, etc.’’

The Committee recognizes the need to protect basic linguistic rights by means of constitutional guarantees. Beyond that, progress in the use of a minority language can only be assured if Parliament and the Legislatures have the political will to promote it. Minority groups must also receive support from governments to help sustain and promote their cultures. A language cannot flourish without a cultural environment that protects its…

Ultimately, the progress of bilingualism in Canada will depend upon the evolution of public opinion, not on compulsion. In that context, more rapid improvements will occur when Canadians realize that learning English or French as a second language is desirable not so much as a political conces-

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sion to another group but as a source of personal cultural enrichment.

The Commissioner of Official Languages, Mr. Maxwell Yalden, has pointed out that in some instances Bill C-60 does not go as far as the Official Languages Act and expressed the fear that the Courts might attach more importance to the provisions contained in the Constitution than to those included in a simple act of Parliament. The points raised by Mr. Yalden should be taken into account in the revision of the provisions of Bill C-60, particularly in the statement of aims of the federation where English and French are referred to as “principal spoken languages” rather than “the official languages”.

Recommendation 13.

The English and French languages should be clearly mentioned in the statement of aims of the Federation as having equal status as the official languages of the Parliament and Government of Canada.

The Committee believes the Charter of Rights and Freedoms could benefit greatly from meaningful consultations with the provinces at the forthcoming conference. Important parts of the Charter fall under provincial jurisdiction and the premiers may wish to go beyond Bill C-60 in protecting individual and collective rights.

With regard to entrenchment of the Charter we regard it as desirable that a satisfactory amending formula be arrived at prior to the formal proceedings necessary to entrench.

In the course of redrafting the Charter, the process of open consultation recommended in the previous section of this report should be followed. More specifically, some of the experts who appeared before the Committee should be consulted.

The Monarchy

Some members of the Committee are convinced that Bill C-60 as drafted would significantly change the role of the Monarchy in Canada. Others do not agree. When Mr. Lalonde appeared before us, he observed that this role had evolved since 1867 and he stated that the provisions of the Bill were intended to take this evolution into account but not to change the present status of the Crown.

The Prime Minister confirmed that view in his letter to Mr. Blakeney. He wrote:

“…the purpose of the federal government is to make clear that the Queen remains the “sovereign head” of Canada and to have that position embedded formally in our Constitution. All that the proposals do with respect to the Monarch and the Governor General is to state the present reality as it is, taking into account the developments in our constitutional practice since 1867. It is the view of the federal government that, in any revised Constitution, such a statement of the present constitutional reality is desirable…”

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The Committee takes note of this statement. A number of Members of the Committee think it is undesirable to codify the functions of all the major institutions of government which are now defined largely by evolving conventions. In any case, we are not yet in a position at this time to redraft the provisions of Bill C-60 dealing with the Monarchy.

The Courts and Parliament

Bill C-60 contains important provisions concerning the courts. Concern has been expressed about the method of appointment of judges to the Supreme Court proposed in the Bill and about proposals for providing regional representations on that court.

Proposals have also been made with regard to the reform of the House of Commons, including its composition and its role.

Most of our witnesses have expressed views on the subject of a second chamber. Indeed, it is probably the topic on which the widest range of opinion has been manifested. Four major proposals have been advanced: an elected Senate, a House of the Federation as provided in Bill C-60, a House of the Provinces similar to the Bundesrat in West Germany, and modified versions of the present Senate. There has been no agreement among witnesses on an appropriate second chamber.

The Committee is not in a position at this stage to make specific recommendations on these most important proposals respecting the Courts and Parliament. The overwhelming body of witnesses and a substantial majority of the members of the Committee are prepared to recommend, however, that the Parliament of Canada should have a second Chamber and that the Senate as now constituted should be reformed.

A copy of the relevant Minutes of Proceedings and Evidence (Issues Nos. 1 to 20) is tabled.

Respectfully submitted,

Maurice Lamontagne
Mark MacGuigan

Joint Chairmen

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Witnesses who appeared before the Committee

Names are listed in the order in which they appeared at the hearings. The issue of the Minutes of Proceedings of the Committee in which their evidence is recorded is indicated.

Issue No.

Lalonde, The Honourable Marc, Minister of State for Federal-Provincial Relations           1 to 3

Dr. B. L. Strayer, Assistant Deputy Minister of Justice                                                     1, 2 and 8

Mr. R. G. Robertson, Secretary to the Cabinet for Federal-Provincial Relations                 3

Representing the Legislative Assembly of the Northwest Territories:                                 4

Mr. Arnold McCallum, Minister of Health, Local Government and Social Services

Representing the Government of the Yukon Territory:                                                      4

Mr. W. L. Lengerke, M.L.A., Chairman, Standing Committee on Constitutional Development.

Dr. David W. Elliott.

Dr. W. R. Lederman, Professor of Law, Queen’s University                                 5 and 12

Representing the Native Council of Canada:                                                                   5

Mr. Harry Daniels, President.

Representing the National Indian Brotherhood:                                                               5

Mr. Noel Starblanket, President.

From the Ontario Advisory Committee on Confederation:                                                6

Mr. Ian Macdonald, Chairman;

Judge Rosalie Abella;

Mr. Rodrigue J. Bilodeau;

Mr. Ken Dryden;

Mr. George Korey;

Mr. Richard Simeon.

From Inuit Tapirisat of Canada:                                                                                     7

Mr. Eric Tagoona, president;

Mr. Togak Curley;

Mr. John Amagoalik;

Mr. Peter Ittinuar.

From the Monarchist League of Canada:                                                                        7

Mr. John L. Aimers, Chairman;

Professor Hereward Senior;

Mr. Arthur Bousfield;

Mr. R. B. Bryce;

Lang, The Honourable Otto, Minister of Justice

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Mr. Gordon F. Gibson, M.L.A., Leader of the Liberal Party in British Columbia; 9

Mr. Ronald G. Atkey, Barrister and Solicitor.                                                      9

From the Canadian Bar Association:                                                                              10

Dr. Gérard V. La Forest, Q.C.,

Mr. David Matas.

From the Canadian Human Rights Commission:                                                             11

Mr. G. L. Fairweather, Chief Commissioner;

Mrs. Rita Cadieux, Deputy Chief Commissioner.

Commissioner of Official Languages                                                                              11 and 13

Mr. Maxwell F. Yalden.

Dr. W. S. Tarnopolsky, Professor of Law, Osgoode Hall, York University              12

Professor R. Simeon, Professor of Political Science, Queen’s University;             13

From the Canada West Foundation:                                                                               14

Mr. Stanley C. Roberts, President;

Dr. David Elton, Research Direction

Dr. Peter W. Hogg, Professor of Law, Osgoode Hall Law School, York University 15

Professor Edward Ratushny, Faculty of Law, University of Ottawa;                      16

Professor Léon Dion, Faculty of Social Sciences, Université Laval.                      16

Dr. Edward McWhinney, Q.C., Head of the Political Science Department at Simon Fraser University, and Membre titulaire de l’Institut de Droit International                             17

Professor Arthur Tremblay, Ecole Nationale d’Administration publique                18

From the Government of the Province of British Columbia:                                             18

Hon. K. Rafe Main, Chairman, Cabinet Committee on Confederation and Minister of Consumer & Corporate Affairs

Mr. Melvin H. Smith, Deputy Minister, Constitutional Affairs (Premier’s Office)

The Honourable J. V. Clyne, Q.C.                                                                      19

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APPENDIX “B”

List of other Submissions

The following are individuals and groups whose submissions were received by the Committee.

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