Mr. Minister, in view of the many representations by distinguished groups, Civil Liberties Association, Mr. Tarnopolsky, Mr. Fairweather and others, in view of their representation, what I found at least to be persuasive representations, that there were certain rights which should never be derogated from, who in fact did you listen to in arriving at your proposed Clause I, which witnesses did you listen to, which witnesses made a recommendation in line with your proposed Clause I that there should be no derogable rights? Mr. Kaplan: Well, I think the government was influenced even by the witnesses with which it disagreed, and we have tried to reflect in the version the cutting edge that we want in the Charter of Rights, a Charter of Rights and Freedoms that will make a real difference to the Canadian people, and I would not want to indicate that any of the witnesses were ignored because that is not the case. Mr. Robinson: Well, there were certainly a few that were not listened to. Thank you.

I wonder, though, why it was thought that the appropriate location for a limitations clause was right at the very beginning of the proposed Charter of Fundamental Rights and Freedoms, and whether you would be prepared to look at the possibility of moving the limitations clause in whatever form we may finally end up with—and naturally, there may be complications, because if there is a preamble in it it would be inappropriate to do this; but if there is no preamble, on the proposed Clause 1, moving the limitations clause to the end of the proposed Charter? In other words, I believe it would be important symbolically, if nothing else, to start out with the list of fundamental freedoms, the mobility rights and a positive statement of what the rights are, and then at the conclusion of the proposed Charter to indicate what limitations might exist on those [Page 26] rights, rather than starting out with limitations and then a statement of rights. Mr. Kaplan: Well, before directly answering the question, I would like to understand that you are suggesting that the difference is symbolic, and that it does not make any real difference. Mr. Robinson: Certainly, I would not argue that there was any difference in substance in the way this will be interpreted, and I am sure your advisers could confirm that. Mr. Kaplan: I do not think there any real difference either. I think it is purely a matter of style. Our view of the matter was that it was more realistic and useful to the reader to see at once that the rights were not absolute, but that they were constrained. That would be made immediately clear to a person consulting the statute without having to read the first 30 sections to find that what was contained in the proposed Clause 1 was 0really not the whole story. It seems to be more honest. Mr. Robinson: Mr. Minister, if it is agreed that there is no difference in substance—and we are talking about a document, a Charter of Rights which, hopefully, would be widely distributed to school children, to Canadians right across the country, and I would suggest there is a certain symbolic value in setting out those rights and then at the conclusion of those rights indicating what the limitations, if any, may exist in respect of them, as is done in the Diefenbaker Bill of Rights, where the rights were enumerated and at the conclusion of the Bill of Rights, there are references, for example to the War Measures Act and to other limiting provisions.

Mr. Roger Tassé, (Q.C., Deputy Minister, Department of Justice): I think that is an important question you have raised, Mr. Fraser. In effect when you look at the meaning of law, it may mean a number of things and in this context it could mean an Act of Parliament, for example, and we did not want it to be restricted to an Act of Parliament for some of the reasons that have been expressed, and also for another reason that has not been mentioned so far, and that is in effect we wanted also to cover rules of the common law. For example, in the area of libel, defamation. And in many provinces this has not been clarified. There are rules that have just been expressed over time by the courts and we did not want to upset all of this legislation so that is why in effect in French we have used an expression that would embody as well rules of common law that have been established by courts and it could be in the civil law field or in the common law, most probably in the common law, but also would include the statute and include a regulation enacted under an appropriately passed or enacted legislation. Mr. Fraser: So what you are saying, then, is that … Mr. Tassé: Perhaps if I may just expand on what I have just said. For example, if you look at the freedom of expression, the law of defamation, the law of libel imposes some limits on that so we wanted these to continue to have application and we think that they would fit in effect the tests that are set out in Section 1. Mr. Fraser: Well, then, by the same token, so does the law of master and servant, the law of contract and the law of partnership, and a number of other common law notions. [Page 50] Could you foresee a situation where, on the basis of the rights set out in here, you could have a conflict between what are considered laws which stem from the body of case law that has come down over the centuries which could be in conflict with the right that has been set out in the Charter? Mr. Tassé: Well, Mr. Fraser, we do not see these rights or these prescriptions of the Charter to have application in terms of a relationship between individuals. We see them as applying in terms of a relationship between the state and individuals, so I am not sure that in terms of contract laws, unless we were looking at the situation where in fact we are talking of contracts passed between the state, the government, and that might offend a constitutional limitation on some of these rights, then the Charter might be called upon for assistance but if we are just looking at in effect relationships, contractural relationships between individuals, I do not see how the Charter itself could be called upon to assist in resolution of conflicts that may arise. Mr. Fraser: Well, I do not want to take this too far into the realm of theory but individual contracts are constantly formed as a result of discrimination between certain options and certain individuals, and that has always been, within some limitations, an accepted freedom to enter into contract unless there is a specific piece of legislation which forbids it. You can take, for instance, the codes in some of the provinces which now constrain absolute freedom of contract in hiring policies. But I take it that what you are saying is that in the English version when you say “prescribed by law”, that is not just statute law, but is also the common law? Mr. Tassé: Yes. Mr. Fraser: As decided by the cases? Mr. Tassé: Yes. Mr. Fraser: But they could still be challenged if somebody could take the issue to a court and say that that law can no longer be demonstrably justified in a free and democratic society? Mr. Tassé: That is correct. Mr. Fraser: Thank you.

what effect does this have on the law contained in the common law and has this been considered? Specifically, and to make it easy, a contract, contracts in their very nature are discriminatory, and I am wondering if this problem has been addressed?

Senator Connolly: Just on that last point, I wonder whether this should not be said, that if Parliament is discussing a piece of legislation which authorizes the making of regulations, it flows from the passing of that piece of legislation that the regulations must be within the four corners of the act, and I suppose the theory is that if Parliament is afraid that something is going to be done under the authority to make regulations which go beyond the act, then I suppose it is up to the parliamentarian at that time to make his objection. Now, you do say, and you did say, if a regulation violates the mother act under which it is made there is recourse to the courts. Your objection to that, I take it, is that it takes too much time and expense and everything else, and I think that is the risk we run in connection with giving the executive a regulation making authority. Mr. Chrétien: And there is too, I would like to say there is, under statutory act procedures there is a revision of all the Orders in Council by Committees of the House and you remember that, but I do think that the principles are the same. We are giving the Canadians some rights and the limits are mentioned in Section I and the courts can intervene and if the rights of the citizens have not been respected in the piece of legislation or any regulation, they are illegal and the court will decide that they do not meet the test that they can be demonstrably justified in a free and democratic society.

The second part of my question, Mr. Chairman, relates to the use of te word law in Section 1. Any limitations must be as the section states prescribed “by law”. My reading of that, and I hope I am wrong, but my reading of that is a regulation of the government could limit in fact any of the rights or freedoms which are contained this proposed Charter. I believe that the word law indeed does include a regulation as it has been defined in Canadian jurisprudence and, Mr. Minister I would hope … Mr. Chrétien: When you talk about regulations … Mr. Robinson: If I can just conclude my question, Mr. Minister, my understanding is that that is the way the law is interpreted, if that is the case then what this is saying is the government, the Cabinet can take away any of these rights, although there is still the recourse to the courts, and I would hope that you would be prepared to look seriously at an amendment which would make it very clear that it is only legislatures or Parliament which could abrogate these very fundamental rights of Canadian citizens? Mr. Chrétien: Yes, but the regution that when we vote any laws in Parliament we always make provisions for regulations, and the regulations that flow from law are part of the law that has been passed, a delegation of authority to the executive to proclaim some regulation that will make possible the law that we pass the enforced, and I think that everything is part of the same law and it will be impossible to—I can look at your suggestion but the principles are the same and if any regulation passed by any government in relation to regulation based on the law, this same test will apply, and the citizens will have the same recourse and I do not see the point unless there are some regulations that could be made outside of the law, but there is not. When you pass an Order in Council, we always have to base our decision on some legal, we need a legal base. Mr. Robinson: There is no debate in Parliament. Mr. Chrétien: But there is a debate in Parliament to authorize the executive branch of the government to do this and do that, otherwise if we are not autorized by Parliament we cannot do that. Perhaps, I do not know, there might be some exception to that rule. Do you know any? Mr. Strayer: No. Mr. Chrétien: I do not. Because if we act without any authority from any law, our action is illegal. So I am not preoccupied with the problem you are raising. [Page 48] Of course, you can always argue in the House we should never give any delegated authority to any Order in Council. Mr. Robinson: No, no. Mr. Chrétien: No, but y could, and say everything has to be approved by Parliament on a daily basis. We could but it would be a hell of a mess. Mr. Robinson: Mr. Minister, I am saying that where there are to be abrogations, that Parliament should discuss that at least.

Mr. Minister, Section I as it stands now modifies everything that is contained in the Charter, and I appreciate that there can be difficulties in defining which particular rights should never be abrogated. Would you be prepared to look as a minimum at least at excluding those rights which are contained in the Covenant’? If you look at the Covenant I am sure you would agree that it is not a very comprehensive listing, but at least excluding, for example, the right to protection from cruel and unusual punishment. Would you be prepared to look at those areas which this Committee as a whole could agree upon should be protected from trampling upon at any time? Mr. Chrétien: If you ask me would I be willing to look upon, I can look into that but I do think that why we have proceeded in that way, the technical reason, I will ask my advisor to reply to aspect. Mr. Strayer: Well, any attempt to make a list is going to be arbitrary, I think, even if you look at the international covenant. It is somewhat arbitrary in the rights it says can never be derogated and those which it implies can be derogated. For example, in time of emergency or war it forbids derogation from rights such as rights against discrimination on the basis of race or colour but it allows discrimination, apparently, on the basis of national origin; and one can argue overwhat rights ought to be in theory derogable in times of emergency and ones which might not be, but the approach which we are taking here in the new Section I is to leave that as a matter of judgment in the given situation and it is very hard to imagine any situation, for example, where a court would say that it was, in the words of the section, demonstrably justified in a [Page 47] free and democratic society to use cruel or unusual punishment. Even in time of emergency. Mr. Robinson: Mr. Chairman, I understand the argument that was made, but just to conclude this question with respect to Section 1, I do hope that if the Committee can agree on certain restricted areas which, as you say, should never be, I assume you would agree, never be violated, that the government would be prepared to at least consider a possible amendment to that effect.

I wonder if there is a difference in your view in onus between a reasonably justifiable onus on the person before the courts to show that their rights, let us say that the legislatures have not infringed upon the rights of the person, or demonstrably justifiable. To me it seems there might be a heavier onus on the legislature to show they have not. Mr. Chrétien: I have explained this morning the policy of why we have done it, and that it was to find an equilibrium between the rights of the citizens to be protected by the courts and the power of the legislature or Parliament to pass law, and perhaps you are asking me a rather technical question and would you reply to that, Mr. Strayer, please. Mr. Strayer: Mr. Chairman, it was the belief of the drafters that by going to these words demonstrably justified or can be demonstrably justified, it was making it clear that the onus would be on the government, or whoever is trying to justify the action that limited the rights set out in the charter, the onus would be on them to show that the limit which was being imposed not only was reasonable, which was in the first draft, but also that it was justifiable or justified, and in doing that they would have to show that in relation to the situation being dealt with, the limit was justifiable. So whereas before there was no indication as to who had the onus of proving that the limit was reasonable or unreasonable, or whether it was generally accepted or not generally accepted. This seems to put the onus, appears to put the onus on the government that has to try to uphold some kind of limit to the rights set out in the charter. Uphold the legislation or administrative action or whatever it is in question. I might add, Mr. Chairman, that this kind of language was recommended by the Canadian Human Rights Commission. They had two possible drafts, and one of them was very similar to the words in the present proposal, the new proposal. They used words such as prescribed by law as are reasonably justifiable in a free and democratic society. Professor Tarnopolsky, in appearing before the Committee, talked about using words such as restrictions as are prescribed by law and are -necessary for the purposes of a free and democratic society, or he said you could use terms such as demonstrably justifiable or demonstrably necessary, but he said the onus has clearly to be on the one who argues in favour of restrictions, and that apparently is what he thought such language would do, it would put the onus on the person trying to justify the limitation.

The idea is that we have to find the proper balance between the protection of individual rights and the legitimate power of any legislative body. You have to respect the fact that there are legislatures and people have been elected there and they should keep some power of legislation.

I take it that the purpose of this change was to somewhat reduce the limiting direction to the courts of Canada that this section gives when they interpret the rest of the Charter. I want to explore with you just how far it really goes in making that change in the rules; because “reasonable limits” is the same phrase we have in the previous one, and it is modified by “prescribed by law”. That is number one. That can probably be married off with “parliamentary system of government” which you have in the first effort. Then it goes on to say, as can be demonstrably justified Will, if there is a law passed by Parliament, I think the initial assumption is that it is justified or Parliament would not have done it. [Page 42] Whether the courts will take that view, I do not know. But it seems to me that there is a risk that they will. Then you go on to say: as can be demonstrably justified in a free and democratic society. Well, if a free and democratic society passes a law, what is the difference between the situation that we have here and the one you had in the formal one where you said: generally accepted in a free and democratic society with a parliamentary system of government. My fear is that you have not moved very far in removing the objections of these 19 bodies which have appeared before us, and I would like to have your rationale. Mr. Chrétien: I think we have moved quite far; and, in the case of those who were the main proponents of the change, Professor Tarnopolsky and Mr. Fairweather, it is the text which they have more or less suggested, and they have approved it and commended me on it. This is to make sure that, even if the law were passed—it was a danger before that it was almost impossible for the court to go behind a decision of a Parliament or a legislative assembly; but here, even if the law is passed, there is another test, namely that it can be demonstrably justified in relation to this Charter. So this limited clause narrows the limits of the courts. The first one—and you heard the testimony given here, where there was argument to the effect that it was so limiting in scope as to be almost useless, and we would be caught in the same position as we were in the case of the Bill of Rights of Mr. Diefenbaker which has not in fact been used in the courts. Why have we done it? It was not my initial proposition. I have done it under pressure from the provincial governments. It is a good illustration of trying to get on the right keel and you end up with a situation where it was meaningless. So we went back to the original text. This will permit the courts to appreciate whether legislation passed by the different levels of Parliament and legislative assemblies are in conformity with the Charter. The intention of a Charter is to limit the scope of the legislature and Parliament in relation to the fundamental rights of Canadian citizens.

Now, the point is that we heard testimony from some 19 different organizations, I will not name them all but some of their presentations stick in my memory, the Canadian Civil Rights Association, the Canadian Jewish Congress, the Canadian Human Rights Commission, the Canadian Advisory Council on the Status of Women, the National Association of Japanese Canadians, and a good many others, who were concerned about Section 1. While I cannot attempt to summarize with any accuracy what each one said, some of them, at least—and some of the important ones left me with the impression—that this Section 1, as it stood, was so limiting in its impact and force as to destroy—in fact some of them went so far as to say they would just as soon not have the whole thing if Section l was in there: that the limiting character of Section l was so severe as to destroy the effectiveness of the other guarantees in the Charter.

Section 1: many witnesses and most members of the Committee have expressed concerns about Section 1 of the Charter of Rights and Freedoms. These concerns basically have to do with the argument that the clause as drafted leaves open the possibility that a great number of limits could be placed upon rights and freedoms in the Charter by the actions of Parliament or a legislature. The purpose of the original draft was to ensure that the people, the legislatures and the courts would not look upon rights as absolute, but would recognize them as subject reasonable limitations. While some believed no limitation clause was necessary, many witnesses agreed such a clause is desirable but argued that a more stringent formulation is necessary. You have received a number of constructive suggestions. I am prepared on behalf of the government to accept an amendment similar to that suggested by Mr. Gordon Fairweather, Chief Commissioner of the Canadian Human Rights Commission and by Professor Walter Tanopolsky, President of the Canadian Civil Liberties Association. The wording I am proposing is designed to make the limitation clause even more stringent than that recommended by Mr. Fairweather and Professor Tarnopolsky. I am proposing that Section I read as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.

The second point I wish to make is the very serious reservations we have with the manner in which Section 1 is presently framed. More specifically the phrase: . . . only so such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. Its broadness and vagueness can be interpreted to give the government the licence to invoke, for instance, the War Measures Act or any future emergency powers act. It is our view that rather than limiting the rights of individuals and groups on certain occasions, there should be limits put on the definition of what constitutes an emergency. This principle should in some fashion find expression in the constitution. Also, unless the constitution guarantees that the Bill of Rights is to supersede all past, present and future legislation, then ladies and gentlemen, we believe that you are not only condoning the past, you are preparing the way for history to repeat itself.

Mr. Chairman, I would hope in light of the grave concerns that our witnesses have today about Section 1, that the minister be requested to come back to this committee before December 8, preferably the fifth or sixth or so, earlier in any event, so that we can find out in an objective and non-partisan way what he intends to do about Section 1, whether it is to be left in its present form. The present form reflects not communication and dialogue with groups such as your own; it reflects the views of the provincial premiers of this country. It reflects the findings of the minister in his deliberations across Canada this summer as well as the selfishness of many provincial premiers. I think Section 1 is defective and has to be improved. I cannot presume to be talking for my party, but certainly I am speaking for myself. So, I am very pleased with the forcefulness with which you have made your points.

Ms. L. McDonald: I think for reasons similar to what Mr. Fairweather and other witnesses have raised regarding the treatment of Japanese Canadians. It was within my lifetime that married women were thrown out of the Public Service on marriage. The Stella Bliss case shows how unacceptable women in the labour force are if they are pregnant or if they have very young children. We cannot take as generally accepted all of the rights and freedoms that we would want to have. There are still people that would argue that women do not have a right to jobs on the same basis that men have that right. So we would certainly want that to be in there very strongly.

Ms. L. McDonald: The opening section under guarantee of rights and freedoms falls short of the statement of principle we would expect. imprecise wording in the limitations clause could open the way to a variety of interpretations of permitted exceptions. Indeed, the potential for driving a truck through the clause led our participants at the conference to dub it the “Mack truck clause”. Failure to clarify the guaranteed rights and freedoms by removing the limiting clause would render useless subsequent sections. Therefore, NAC proposes that the general limiting clause be deleted. If there have to be restrictions on rights and freedoms in time of war these should be specified as well as those rights and freedoms not to be abridged under any circumstances. NAC recommends that the rights and freedoms not to be abridged under any cirumstances should include at least the right not to be subjected to any cruel and unusual treatment or punishment and the human right to equality in the law.

We surmise that Section 1, at least in part, was included to give Parliament the chance to limit our civil liberties when it is necessary in times of war. apprehended insurrection or other civil emergencies and we suggest that it is in keeping with the democratic traditions of the western world if the limitations that can be placed on our liberties are explicitly spelled out in the charter of rights and not left to something like Section 1. We suggest that Section 1 be reduced to a simple preamble explaining what the charter of rights is intended to accomplish and that Section 29 include a limitation that will come into effect only in times of war or other times of public emergency and that this section ensure a number of aspects. In time of public emergency which threatens the life of the nation so that it is a serious emergency and the existence of which is officially proclaimed, Parliament may authorize that temporary restriction of certain rights and freedoms to the extent strictly required by the exigencies of the situation but in a manner that the other rights and freedoms set out in this charter will be preserved. We also stipulate that there are some freedoms and rights set out in the charter that need never be interfered with no matter how grave the emergency. We recommend that the non-discrimination rights never be tampered with and that there never be any derogation from freedom of conscience and religion, the right to vote and hold office, because there are already protections allowing for the suspension of elections which are found in Section 4. The right to life, liberty and security of the person except when denied by a law duly enacted; the right to being safe from cruel and unusual treatment and punishment; the right to a translator in judicial proceedings should in our view never be suspended because of war or apprehended insurrection, and all the language rights in Sections 16 to 23 need in our view never be suspended because of any kind of civil or martial disability.

I wonder if you could confirm that unless this Section is indeed amended that we would in fact be in violation of our requirements under the International Covenant on Civil and Political Rights and indeed, because we have signed the optional protocol, that another state could indeed take us before a tribunal of the United Nations to complain of that violation. Mr. Fairweather: Section 1, indeed that would be my opinion. You put it very well.

We are troubled by the language of Clause 1 which, in its present form, raises fundamental doubts about just how serious the committment is to reform. Those are strong words but you will hear them, I am sure, again and again from witnesses who come before this Committee. The language used departs from that to be found in domestic constitutions of many modern states but what is even more significant is it departs from the European Charter and the international Bill of Rights ratified by Canada, because the language in Clause 1 is unique, it has never been tested. On the other hand, jurisprudence is building up which explains the language of other domestic and international charters. It is in our opinion foolish to turn our backs on a useful body of jurisprudence. As well, the language seems to us to be dangerously broad. We know you will seriously consider recommendations for a more careful wording of Clause 1.

Mr. Fairweather: It is seriously flawed, and I just cannot believe it is going to be the final enunciation of the principle.

My second question relates to Section 1, which I understood at the outset from your remarks to be of considerable concern to you, and I have forgotten your words, but I think you regard the Charter of Rights as seriously flawed, those are the words I recall, in relation to Section 1.

Mr. Robinson: I would also like to ask you with respect to the question that was touched upon by Mr. Epp and also initially raised by yourself, and that is the actions that were taken during and immediately after World War II with respect to Canadians of Japanese origin. Would you indeed confirm that it is at least very possible that under the charter as it is presently worded in view of the fact that it could be argued that that action was “generally accepted” at that time, that that kind of action would indeed be permitted under Section I as it is now worded. Mr. Fairweather: Section I raises that danger.

Mr. Fairweather, what I would like to do from looking at materials that you have provided earlier, is take you to your concern of Section I of the proposed resolution. At the bottom of your presentation as well as in the accompanying documents you stress your concern about Section l. I would like to ask you from your perspective if the clause remains essentially in the form it now appears what are the technical consequences of that clause in relation to the protection of rights and freedoms? Mr. Fairweather: They are so serious that I could not imagine this Committee letting Section l go unamended, That section as drafted would challenge, in my opinion, the rest of the charter, and I suspect somebody is going to be getting an amendment. It is, as I said, turning our backs on the international and national jurisprudence, and it is very broadly drafted. Why we do not use the language that is well accepted now and has been ratified by Canada, for the life of me I have no idea. This is a strong statement but I have strong feelings. I am absolutely committed to the entrenchment and the patriation and the goals. They are wonderful goals for this country at last but why not go for something better. Mr. Epp: From your experience as a Commissioner of the Human Rights Commission, could you give us examples of if this proposed resolution had in fact been in effect with the prohibitions in Section 1, can you give us some specific examples of the restrictions it would have given or caused both to rights and freedoms and also to the Commission? Mr. Fairweather: Yes. One was given last night, if I know correctly, by the Minister of Justice for Canada. It might be that generally accepted standards in this country for mandatory retirement, the anti-discrimination part having to do with age, could be challenged and rendered meaningless as a reform mechanism, because the generally accepted standards now are quite illiberal, if I may use that word in this place. [Page 12] The generally accepted standards for Canada are to push people out at certain ages, I greeted this charter with excitement when I saw that the Government of Canada had included age, but when I see the language of Section 1, I wonder. Another message that surely cannot be forgotten is that the generally accepted standards in Canada in 1940 and 1941 were to take Canadians whose offence was that they were of Japanese origin. In the Wellington Street Archives last night while you were doing something else I went to the festival of the 100th anniversary of the Chinese in Canada. They came to build the railway and I am as shocked as I know senators and members are to remember that people who are enshrined and rightly, in our history were perpetrators of the Chinese Exclusion Act, the Chinese $50 a head tax act. The Chinese people in this country were not allowed to vote in a province I think until after the Second World War. It was Mr. Diefenbaker who gave the Native peoples the right to vote in the late 1950s. I am not saying that a government that follows this one would, but it could, because those were I guess until reform came the accepted standards. This document is to be entrenched, enshrined, as a statement to the people who have their loyalty to Canada. Mr. Epp: Do I understand you correctly, sir, that if the document before us were to be enshrined, entrenched, that an incident like Canadians of Japanese origin and the removal of these people from various parts of Canada, their prohibition of freedoms at that time, that in fact that kind of action would still be possible under the charter in its present form. Mr. Fairweather: I think, Mr. Epp, my duty is to warn you, and I have given some examples, age and these other offensive matters could be put in jeopardy. I am not saying they will but they could. I think most of this charter is really a superb piece of work, but I cannot see why Canada wants to turn its back on accepted international standards and language that has been adjudicated. That is why I am being a bit fussy. It clouds the rest of a noble document.

Section 1 of the Charter is a very strange article. You have had a lot of comment on it. I do not wish to burden you with repetition. We made two points about it, looking at the first page of our brief, We say that Section I tends to guarantee charter rights, and freedoms, and at the same time provides justification for the suspension of charter rights during an emergency. I have a feeling that the draftsmen, when they drafted Section 1, were torn between two conflicting pressures on them intellectually and practically. The pressures were, how to maintain the theory of parliamentary supremacy when introducing a theory of a charter regime. It was an attempt to find some kind of practical, legal, political equilibrium between a charter regime system, on the one side, and a parliamentary supremacy regime on the other, that Section I represents. But then, when you look at it, it is so great an invitation in language such as, “subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government”, that any agressively minded lawyer with an aggressively minded government could ride through that series of gates with very little difficulty and find the charter heavily wrecked en route. [Page 86] We feel that is not the way to begin a regime of a charter; it is not the way to start a new system of rights. We solemnly recommend the total elimination of Section 1, because when you go into Section 2 and the rest of the charter you are very specific there. You do not need Section 1. To the extent that you need emergency powers, you will have them. We recommend that in a new article, Article 28(a) at the end of the brief. To the extent that you want to have an equilibrium between a charter regime and parliamentary supremacy, you must accept the fact that, once you introduce a charter regime, parliamentary supremacy is modified for ever to that extent. That is a plain legal and political fact, and you cannot have the best of both worlds, except in an emergency and we provide for an emergency.

Mr. Irwin: Now, you have serious difficulty and a great deal of criticism with Section 1, which says 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government. I suggest that if an abuse occurs, then the person who is abused could apply to the courts to see if Parliament has abused that person by legislation and if the courts decide that such abuse has occurred in legislation, and it does not fit in within reasonable limits as are generally accepted in a free and democratic society, then that legislation will be struck down. Mr. Borovoy: The answer to that is yes but the difficulty is the test. If you are talking about that which is generally [Page 26] accepted in a free and democratic society with a parliamentary form of government, you may well be talking about everything that Parliament or the legislatures have said is acceptable and to the extent that you are doing that, then it renders the entire charter a verbal illusion.

In that particular section, you seem to be recommending to the Committee that unless we change Section 1, then in a sense the game was not worth the candle, that the rights that are promised are not delivered. I want to make sure that that is clear to the Committee. Are you suggesting that unless we change Section l, then the resolution with respect to civil rights that is before us is either useless or dangerous or both? The Joint Chairman (Mr. Joyal): Mr. Midanik? Mr. J. S. Midanik (Q.C., Canadian Civil Liberties Association): Yes, that is our position. Not only that you change Section l, but that the rest of the charter be changed along the lines we have indicated because we feel that the rest of the charter itself is also defective in many respects. But the major problem deals with Section I and if any form of Section 1 is kept so that there be some limitation at all, our position is that it should apply only to Section 2 and not to the rest of the charter. In other words, that the specific rights in the Charter not be limited at all by any Section 1, but if there be any specific limitations, they apply to Section 2 and any such limitations might well be delineated more clearly, as contained in a number of the international covenants. So, what we are saying again is that if what you are going to give us is what we have now, what is before us, our position is thanks, but no thanks, we would rather take our chances with what we have.

Mr. McGrath: I am saying that your charter is meaningless in the light of what is said in Section 1 of Schedule B when you make it subject to the reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

Surely that makes everything that follows redundant because a free and democratic society would have within it in a parliamentary system freedom of conscience and religion. Ours does; it operates under the practices and conventions and traditions of the British Parliamentary System. It seems to me that you have fallen into the same trap here as the Canadian Bill of Rights because you are going to exclude all the very commendable rights and freedoms that you have set out in Section 2 of Schedule B. It either means that they apply or they do not apply. What are the reasonable limits as are generally accepted in a free and democratic society.

I want to ask the Minister in particular about clause one of this proposed Charter of Rights and Freedoms because I suggest that in its present wording it is a gaping hole in the Charter which really makes the alleged rights and freedoms which are supposed to be protected completely illusory; and in fact if this section one is permitted in its present form that in many ways we will be in a worse position in this ggttntry than had this particular Charter not been implement- Mr. Minister, first of all with respect to clause one I would like to ask you who would determine what is generally accepted as a limitation on these rights and freedoms, and what test would they apply? Would it be a numerical test? Mr. Chrétien: It will be the court who will decide. The way I understand the courts to operate, the precedents will determine the next move. It will be the court because we are not giving them other tests than these. Mr. Robinson: How will it be determined what is generally accepted? Will that be in terms of numbers, if the majority of Canadians accept particular limitations? Would this be your understanding of that provision? Mr. Chrétien: I do not want to pass judgment for what the court will say but I do think there is some, as I explained earlier, there is some historical situation, trends in society, that they can measure; whether it be in terms of numbers and so on. Of course, we are putting a charter there for one reason, to protect the minorities against the abuses of the majority. We have improved fantastically over the past 50 or 75 years in Canada in terms of tolerance in our society and so on and they will have the test of what is reasonable in their minds in [Page 28] relation to those rights that are there. I do not see them turning back the clock; it will be in terms of progress and in terms of protection.

Mr. Tassé: That is the test that the Court would have to apply and that is the whole purpose of the Charter of Rights. In fact, when you entrench a charter of rights like this one you are saying that Parliament and the legislature will constrain themselves when they legislate.

we have a Charter of Rights but this text is a limit; it is an indication to the court how to interpret the charter in relation to the different legislation because if you do not put those words there it could lead to all sorts of change by the courts that will not give them any limits of interpretation. As said by my Deputy Minister there is some legislation that has been well established in the Canadian society that are recognized, and we have to make sure that the courts do not destroy all the previous work of the evolution of our society. Otherwise we will be in great legal difficulty, so they will have to apply the test of reasonableness in their decisions. I do think the Charter of Rights has its own limits, as you will find out when you are studying it, section by section.

Mr. Roger Tassé (Q.C., Deputy Minister): In effect, Mr. Chairman, that Section 1 is meant to bring forward the concept that these rights that are spelled out in the Charter, [Page 15] those you have mentioned and the others, Mr. McGrath, are not absolute rights. If you just take, for example, the freedom of expression, there are limits to the freedom of expression that already are spelled out in the Criminal Code and that will continue and should continue when a Charter of Rights like this is entrenched. What the Section is meant to do is to bring that concept not only to the legislatures but also to the judges because in effect the judges when they are faced with cases where government action or parliamentary action, legislative action is being tested and being challenged, in effect they have to decide whether limits, restrictions, that may have been imposed, because again these rights are not absolute, are reasonable ones. That is only what Section 1 is intended to do, that in effect the judges, when there are challenges brought before them, wherein effect people would claim that their rights have been unfairly or unreasonably restricted that in coming to a conclusion when they are so challenged that in effect the courts will have to take for granted that there are some limitations that may well be reasonable and legitimate in the kind of society in which we live.

Section I, which preserves the existing constitutional tradition, must be deleted to fully entrench the Charter. Its meaningless vagueness opens the door to the very abuse to the supremacy of Parliament which the Charter is intended to check. Moreover, special provisions are necessary to instruct judges in the Charter’s interpretation. By deleting Section I of the Charter, there will be removed an obvious peg for argument designed to thwart the Charter’s purposes.

You have referred, as other witnesses have, to Section I, which has been pointed out would permit the proclamation of the War Measures Act in the same terms as in 1970, and will permit the internment of Canadians of Japanese origin and the confiscation of their property. Would it be fair to say you would agree with the suggestion of the Canadian Civil Liberties Association that if Section 1 is not rewritten and perhaps if there is not a remedies section—I believe those are the two sections you have pointed out as having perhaps the gratest weaknesses in the proposed charter—and indeed, we would perhaps be better off not giving the Canadian people the illusion that they have certain rights, but rather that we would be better off without this Charter, if those sections are not in fact amended? Mr. Black: The other way in which, perhaps, you could put it, is that if we do not amend the section, Section 1, we would not have an entrenched charter, even if we were to enact this document. Section 1 imposes such severe limitations on the whole concept of an entrenched charter of rights that it has to be removed to give any effective force to entrenchment.

Now, it is obvious there can be circumstances in which the rights listed in the Charter would have to give way. In times of serious crisis threatening the existence of the nation, such as invasion, insurrection, large scale natural disaster, a temporary emergency limitation on our fundamental rights might be necessary. This is obvious. In fact, it is so obvious and so widely agreed, that, given the difficulties in drafting an acceptable limitation clause, it might well be wiser to leave one out. We cannot now foresee all the situations that might justify temporary emergency limitations. It might therefore be best to let the courts decide in particular cases when the facts of an emergency are known. However, if there is to be a limitation clause, it must indicate clearly that most contingencies that face the nation are to be dealt with by ordinary means which respect the rights guaranteed in the Charter. It must indicate clearly that limitations are justified only in times of “public emergency which threatens the life of the nation”, and then only “to the extent strictly required by the exigencies of the situation”. Here we use the language of the international Covenant on Civil and Political Rights, Article 4, Section 1, to which Canada is a signatory. We recommend this language to you for your consideration. Further, if there is to be a limitation clause, it must clearly indicate that limitations on the Charter justified by public emergency are temporary. We would argue for the inclusion in a general limitation clause of four subsections, the first requiring prompt Parliamentary authorization of the invocation of special powers under emergency legislation, such as the War Measures Act. Second, requiring regular renewal of this authorization if the powers are not to lapse; Third, allowing a small number of members of either House to force review of the authorization; And fourth, allowing any innocent person damaged under the special powers to seek compensation in a special tribunal.

Section 1 of the proposed Charter has come under strong attack and quite deservedly so. At a previous hearing, someone called it the Mack Truck Section. We call it the bathtub section because it makes it much too easy for our leaders and lawmakers to pull the plug on human rights and freedoms and if it is included in the Charter the Charter itself will be worth very little. Section 1 at present says: . . . the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democractic society with a Parliamentary system of government. It will be hard to think of any statement more dangerously vague than this. What is meant by reasonable limits and how is this decided and which democractic society and Parliamentary system are we talking about. Such language opens the door to entrenched present injustices merely because they are widely accepted in supposedly free and democratic societies, and moreover ties Canadian law to the laws and customs of other countries over which Canadians have no control; and to me this is most ironic. We are talking about patriating our constitution and while we are doing this we are proposing to be tied to precedents, set in other countries. it is hard to see what this has to do with producing a Canadian constitution or a Canadian Charter.

Our next item deals with Section I which we call the Mack Truck clause because a person could drive one right through it. We do not intend to dwell at length on this section which creates such loopholes in the legislation. Suffice it to say that we join with the continents of the Canadian Advisory Council on the Status of Women, the National Action Committee on the Status of Women, and the Canadian Civil Liberties Association and other groups in condemning Section 1. I would just like to summarize a few of our objections. There are two main points. First, Section I applies at all times, it is not limited to emergency situations. Secondly, the standards of reasonable limits that are generally accepted in a democratic society appears to us to allow virtually any legislation passed by a majority in Parliament or a legislature. Apart from concerns regarding the basic rights and freedoms which we share with other groups, we are concerned that this clause may have the effect of completely negating the protection provided by Section 15 on equality of rights.

Mr. Chairman, the serious structural limitations which occur repeatedly through this bill find first expression in Section 1 of the Charter. The limiting provision of this section is so general as to permit, if not cause, the certain failure of everything which the Charter sets out to achieve. If this is poor [Page 7] drafting, then it must be improved. If, however, it is the clear expression of the will of its creators, then they have a view of entrenchment which we will submit does not find reflection in the popular will of Canadians. If the rights set out in the Charter are subject to the limits stipulated in Section I then Parliament acting alone will always have supremacy over the Charter, effectively denying what the Charter proposes to create—entrenchment.

Now, I put to you that no right is absolute; even the right of free speech is qualified in that perhaps for instance, under the Criminal Code you cannot cause a disturbance in a public place, for example, there are many restrictions to keep our society together without having it turn into anarchy or chaos. I suggest to you, because you are critical of the wording later on in general, that rather than deleted Section l, we might come back with a better worded Section I that meets the requirements of more inspiring wording, and meets the requirements that rights in here are more enshrined and less susceptible to court interpretation. Mr. Paisley: Our concern with Section 1 as written is that it would, in our opinion, completely over-ride the rest of the Charter. Without examining the given Section 1 which is envisaged, it is impossible to say whether our concern would be satisfied or not. We simply take the position that if it remains with the rest of the Charter, it would probably be of no effect at all. Mr. Irwin: Many groups have expressed the view which you are expressing, and some have come back and said that it should be made stronger and not so intrusive. I appreciate the difficulty in not having that here now. Mr. Paisley: May I add to what I have said further. We feel that even if there is no Section I, it does not mean to say that [Page 23] there are going to be unqualified or absolute rights. Experience elsewhere with unqualified rights shows that they are in fact qualified by the courts. There is the statement of the courts in the United States to the effect that the right of freedom of speech does not give a person the right to call “fire!” in a crowded theatre. We believe that if you have the right stated in an unqualified fashion it would be interpreted in a reasonable way by the court. That is the reason why we suggest it is unnecessary to have this sort of introductory limitation clause as proposed.

are the limits mentioned in Section 1 whatever may be the individual linguistic rights mentioned elsewhere in the Charter, embarrassing for you as Commissioner of Official Languages. Mr. Yalden: Mr. Chairman, broadly speaking this part of the first section embarrasses me a little, not necessarily as Commissioner of Languages, but as a citizen reading the text, I do not understand it very well. I find it so broad that whatever it says does not represent in my view a requirement for a legislature who should guide the courts very clearly, very explicitly. If it is the case, it seems to me that this section should be more specific, not stricter than it is. I have followed the discussion here in the Committee, and I said several times tonight I am not a lawyer, consequently, I cannot really express a categorical opinion. It is embarrassing for me for very broad reasons. As for the linguistic aspect, would the linguistic rights mentioned in Sections 16 to 23 be affected by this short paragraph? I really could not give you an answer, precisely, because I find these words: subject only to such reasonable limits as are generally accepted in a free democratic society with a parliamentary system of government so vague that I do not know what they mean. If I knew, I would answer you.

Section I should not govern either Section 14 or Section 15. It is our view that there should be no circumstances where the right to an interpreter, which a deaf, blind or just a deaf person may require in court, should ever be taken away. Why is it either in war or emergency that a deaf-blind person on trial should be denied an interpreter to know what the case is against them. It is too basic and a denial of natural justice. Moreover when should unwarranted discrimination be permitted? At wartime? At peacetime? In the case of an emergency? It is hard to imagine a situation where it is justifiable, and therefore we have recommended, as have other groups, that Section 14 and Section 15 be absolute rights, rights not subject to Section 1. Alternatively, if that point of view is not acceptable to the Committee, it is our submission that the wording in Section I is far, far too broad. You have heard all the arguments before, we can only reiterate them, that Section 1—labelled by some as the Mack truck provision—will in fact make the rest of the Charter of Rights a virtually worthless and impotent means of protecting civil liberties, In particular, the generally accepted view of the public with respect to handicapped persons is that they are often not capable of taking care of themselves, not capable of maintaining a job, not capable of self-sufficiency, and therefore the kinds of laws that I have discussed previously that are discriminatory would be under Section I generally accepted in a free and democratic society, passed by these kinds of Parliaments. And accordingly, if Section 1 remains, and if Section 15 is still subject to it, it is our view that Section 1 must be very narrowly constrained to protect minority rights and in particular, handicapped rights.