CONTENTS
Thursday 1 August 1991
Errol P. Mendes
Kathleen Ruff
Committee of Persons with Disabilities on the Constitution
Adjournment
SELECT COMMITTEE ON ONTARIO IN CONFEDERATION
Chair: Silipo, Tony (Dovercourt NDP)
Vice-Chair: Bisson, Gilles (Cochrane South NDP)
Curling, Alvin (Scarborough North L)
Eves, Ernie L. (Parry Sound PC)
Gigantes, Evelyn (Ottawa Centre NDP)
Harnick, Charles (Willowdale PC)
Harrington, Margaret H. (Niagara Falls NDP)
Malkowski, Gary (York East NDP)
Mathyssen, Irene (Middlesex NDP)
Offer, Steven (Mississauga North L)
O'Neill, Yvonne (Ottawa-Rideau L)
Winninger, David (London South NDP)
Substitutions:
Drainville, Dennis (Victoria-Haliburton NDP) for Mr Silipo
Grandmaître, Bernard (Ottawa East L) for Mr Offer
Martin, Tony (Sault Ste Marie NDP) for Mr Malkowski
McLean, Allan K. (Simcoe East PC) for Mr Harnick
Villeneuve, Noble (S-D-G & East Grenville PC) for Mr Eves
White, Drummond (Durham Centre NDP) for Ms Harrington
Clerk: Brown, Harold
Staff: Kaye, Philip, Research Officer, Legislative Research Service
The committee met at 1010 in room 151.
The Vice-Chair: The committee will come to order. I would like to welcome people tuning into our proceedings this morning, this being the fourth day of our committee hearings with regard to the select committee and the work it is doing with regard to the Constitution.
ERROL P. MENDES
The Vice-Chair: To get started, I would like to present our first presenter, Mr Errol Mendes, a law professor at the University of Western Ontario, who is going to present to us on behalf of issues around the Canada clause and the division of powers. You should not feel restricted to that if you have any other things to add.
I also mention that Mr Mendes has presented his brief to all the committee members. There are some changes on the committees, obviously, because of yesterday's announcements, and a few of the subs on the opposition as well, so some of the members may have not have seen your brief, but I and others have.
Anyway, with that we would like to give you the floor. Basically what you have is an hour. We will give you about 10 minutes extra at the end, seeing we started a little bit late.
M. Mendes : Je vais presenter mon memoire en anglais, mais mes excuses aux membres francophones parce que je n'avais pas le temps de faire preparer une traduction française.
I want to start my presentation with a general proposition, that in essence the constitutional problem facing this country is 50% political and only 50% legal/technical. Let me tell you the reason I think that.
As far as the vast majority of Canadians were concerned -- the polls bore this out quite clearly -- the vast majority of Canadians did not understand the technical details of the Meech Lake accord. What they did key in on were key concepts, and one in particular, the concept of a "distinct society." One of the reasons I think Meech Lake failed, perhaps the primary reason why Meech Lake failed, is because of a fundamental disagreement between English-speaking Canadians and francophones in this country as to what precisely "distinct society" meant. In essence, that battle became a symbolic battle over people's place in this country and people's desire to have their own self-worth and self-identity recognized in the Canadian Constitution. Therefore, it became a battle over whether or not "distinct society" meant "superior to" as opposed to "equal with but different," and for that reason I think 50% of the problem facing this country is political and therefore we have to address that 50% of the problem.
That 50% of the problem facing this country can be addressed in a Canada clause, because it is in such a clause where you can have Canadians -- I am not talking about constitutional elites or the chattering classes that comprise the media, but Canadians -- find recognition of their own self-worth and their own self-identity in the Constitution and feel they have been given equal worth and equal consideration with all the other major elements of Canadian society.
With that in mind, over the past year I began drafting a Canada clause and tested it out with various groups and individuals across the country representing a broad spectrum of Canadians. I have come up with a Canada clause which could be a working model for such a recognition of the political problem involved in the constitutional reform facing us.
Before I read it out to you, I want to tell you the philosophy behind the drafting of such a clause, because I think it is important for you to know that. As I mention in my brief with the title A Nation's Spirit Defined, I think the spirit of a nation is like the spirit of an individual human. It is born with the personality of its progenitors, it is shaped by the environment of its early environment and, finally, there is a unique spark of spirit -- some would call it a link to divinity -- that comes from neither progenitors' genes nor the environment, that makes us capable of fight against genetic or environmental pre-destiny, whatever Phillippe Rushton at my university says, a spark that proclaims our uniqueness to the world.
Let me then describe the spirit of our nation in the form of a Canada clause that could become a preamble to the fundamental law of our Constitution. It goes as follows:
"Whereas the spirit of the nation was born in the ancestral homes of the first nations of the land,
"And whereas the people of Canada recognize as a fundamental characteristic of the Constitution, the unique, proud and dignified nationhood of the first peoples of Canada vesting in them the full protection of their existing and inherent treaty and aboriginal rights,
"And whereas the spirit of the nation was further formed from the pact of fraternity and co-operation that survived the battlefield between the first English- and French-speaking settlers of the land,
"And whereas the people of Canada recognize as a fundamental characteristic of the Constitution, the linguistic duality of Canada that gives succour to the English- and French-speaking minorities across the land, and affirms the role of the Quebec and Canadian governments and legislatures to preserve and enhance the francophone society, culture and language in Quebec and North America,
"And whereas the spirit of the nation has been nurtured by the evolving multicultural reality of the land,
"And whereas the people of Canada recognize as a fundamental characteristic of this country the racial and cultural diversity, present and future, of all regions of Canada,
"And whereas the Canadian people have demonstrated their unique identity to the community of nations through their diversity of regions, cultures and languages, creating a union that enshrines both respect for difference and for the fundamental individual and collective rights of humanity, including substantive equality for those discriminated against by reason of gender, racial and ethnic origins, colour, religion, age and disability.
"Therefore we the people of Canada declare the following to be the supreme law of the land:"
I should mention to you that this Canada clause has been sent to quite a few MPs across the country, including the federal-provincial office, and there is an indication that the clause may be included as a working model in the federal proposals in the fall.
I now want to turn then to the other 50% of our problem, the constitutional/technical side of the problem, which deals with the arcane constitutional and technical legal matters that need to be dealt with also, because obviously we are facing deadlines and we are facing the real possibility that Quebec may go for a referendum in 1992.
The way I have handled the division-of-powers part of the problem is, again, to start with first principles. I suggest that a solution to any constitutional crisis stems from first articulating and then recognizing undisputed common goals and undisputed common understandings of those in conflict. The common goal of all parties in Canada is to share a common economic space in the part of North America that is outside the political sovereignty of the United States. Even the separatist forces in Quebec recognize and accept this goal and would want, at a minimum, an economic association with the rest of Canada.
To this common goal one can add a common understanding that stands out very much in today's troubled community. We are beginning to understand that in the dying decade of this century, while economics and global competitiveness pull us towards larger economic units, the insatiable human quest for self-identity and determination pulls towards smaller political units, resulting in the fragmentation of ethnoculturally diverse federal and unitary central states.
If Canada is to survive into the next century, these two contradictory historical movements must be reconciled within the new structures of our nation's Constitution.
If we all accept the common goal and the common understanding just described, we can progress to delineating a possible solution to the constitutional crisis in the following manner. What I am suggesting now is quite dense and I would be quite happy to explain, in the question period after, some of the issues which may not seem clear from my first presentation.
First, I suggest that a constitutional process must delineate certain federal and provincial powers that could be shared. However, such powers could only be shared after a provincial referendum that would ratify or reject the power-sharing arrangements. This would be a primary democratic input into constitutional reform. However, there would also be an option on the referendum ballot for exclusive competence by the province over the powers suggested for power sharing. The consequences of provincial electorates choosing exclusive competence will be discussed shortly.
1020
If any provincial electorate opts for a power-sharing arrangement, a new constitutional and legal structure will come into place. In the power-sharing areas, the federal government would, after consultation with the provinces, legislate national standards in each area. I will suggest, and I can follow it up in the question period, that such consultations could end up in the form of a federal-provincial agreement. I would call such standards "Canadian directives." I am using this terminology because the European Community, which everyone is pointing to as a possible solution for our problem, has a similar structure of governance.
Within the scope of the Canadian directives the provinces could tailor implementing programs to suit local needs in whatever manner they wished. The spirit and letter of the Canadian directives would be enforced by a new administrative and legal structure. In each of the power-sharing areas, a federal-provincial agency would be set up to oversee provincial implementation of the Canadian directives. Any individual or group contending that provincial implementation goes beyond the scope of Canadian directives could initiate a hearing before the relevant federal-provincial agency.
If the federal-provincial agency determined that there was a violation of the Canadian directive, it would first seek the amendment or repeal of the offending implementing legislation. If the province were to refuse to change or amend the legislation, the federal-provincial agency would apply to the Federal Court of Canada for an order of compliance with the Canadian directive. The province could at any time appeal the federal-provincial agency's finding to the Federal Court. A province would be constitutionally required to comply with the final determination of the matter by the Supreme Court of Canada.
I am suggesting an alternative procedure which would sidestep the two federal courts, the Federal Court of Canada, Trial Division and the Federal Court of Appeal, by having a direct reference to the Supreme Court of Canada by the federal-provincial agency for a compliance order. This would be a cheaper and quicker method. However, the enormous danger would be that it would overburden the Supreme Court of Canada, which already has, in my opinion, too much on its plate, especially since the introduction of the Canadian Charter of Rights and Freedoms.
What would be the political, social and moral and constitutional philosophy behind such an arrangement? First, some powers now exercised exclusively by the federal government, or provincial powers that are greatly influenced by the federal spending power, must be shared on the basis of equality. Second, because the provinces would be involved in setting up the national standards, and also because they would have autonomy in implementing them, the system would enhance a province's self-identity and determination, but and I want to emphasize this, only as determined by the people of that province, not by individual, self-aggrandizing, constitutional elites. Third, even in these areas there may be a need to enhance the national economic and political identity by means of national standards.
I am suggesting that in addition to having national standards, one way to guarantee the integrity of a national economic and political identity would be to entrench into the Constitution provisions which state that Canada is an economic union comprising a common market that is based on four freedoms. Again, this is taken from the fundamental document of the European Community, the Treaty of Rome of 1957. These four freedoms would be: first, freedom of movement of people and labour; second, freedom of movement of capital; third, freedom of movement of goods; and, finally, freedom of movement of services. Such a constitutional entrenchment of a Canadian common market would also bring into question the legality of many, if not most, barriers to interprovincial trade and commerce.
I am suggesting that the following areas would be the most likely candidates for federal-provincial power-sharing arrangements: first, manpower training; second, unemployment insurance, pensions and other forms of income support; third, immigration; fourth, communications; fifth, culture; sixth, health; seventh, education; and, eighth, other new national shared-cost social programs such as, for example, any new national shared-cost day care programs.
It will come as no surprise to you that these are also the areas in which Quebec will, in all likelihood, insist that it must have either exclusive, or at least substantial, autonomy in preserving and enhancing its distinct society. There are a lot more powers which the Allaire report has said they would like to add to these areas, such as energy and others I will discuss in the question period, if you want to, but these are the areas I think they will focus on the most, in seeking considerable autonomy.
Provincial implementation of programs within national standards contained in the Canadian directives could be financed both by cash transfers and by the federal government allocating tax points. Such federal financing would also politically justify the federal government setting national standards in this area -- of course, after consultation with the provinces in the form of federal-provincial agreement.
In the area of culture, conditional cash grants could continue to be made, thereby justifying the continued existence of the Canada Council. I have a great fear that the Canada Council may be in danger of being closed out, and that is why I have specifically made reference to it, because I think there needs to be a national culture. I am worried about the future of the Canada Council.
In the area of immigration, the federal government would again make available conditional cash grants for immigration resettlement, language training, etc.
Finally, in the areas of health, education, and other national social programs, established programs financing would continue until lack of federal financial resources would necessitate a move to funding on tax points for the wealthier provinces, and allocation of funds to the poorer provinces from a new Canadian interregional compensation fund, which I will discuss shortly.
As I have mentioned above, there could be an option on the provincial ballot for exclusive jurisdiction over the areas listed for power sharing, with the exception of immigration. I will tell you in a moment why I single out immigration as an exception. If a province, in a referendum, were to opt for such exclusive powers, there would be no interference from the federal government and Parliament either directly or indirectly through the spending power. The province would still, however, have tax points allocated to finance such exclusive jurisdiction, but no cash compensation. In addition, the province would not be eligible at any time for allocations out of the interregional compensation fund to finance such exclusive jurisdiction. Finally, no elected MP from that province could have the particular portfolio in the federal cabinet over which exlusive jurisdiction is claimed. Again, I will tell you at the end of my presentation the philosophy behind these suggestions.
Moving on to the next important part of the division of powers that I am suggesting, I suggest there are 10 groupings of jurisdiction over which the Canadian Constitution, the Canadian Parliament and government must have control, either exclusively or on a power-sharing basis. These powers are listed in the present provisions of section 91 of the Constitution Act, 1867. I suggest that such powers are either essential for the federal government and Parliament to have to function as a responsible federal entity, or go to the very essence or the soul of this nation.
These powers will be listed in no particular order of importance as follows:
1. The supremacy of the Canadian Charter of Rights and Freedoms, and I will expound in the question period perhaps why I have put that at the top of the list even though, as I have said, there is no order of importance;
2. Citizenship and immigration;
3. Defence and armed forces;
4. The whole area concerned with foreign trade and shipping and navigation, namely, customs, tariffs, foreign trade, fisheries, shipping and navigation;
5. Foreign policy;
6. Currency and monetary/economic policy;
7. Natives and lands reserved for natives: Again, I want to emphasize that the word "natives" is not my own choosing, because I think we should be moving on to new terminology and the proper terminology is the first nations of Canada. However, I am saying "natives" because that is the language used in the Constitution Act, 1867;
8. Justice, which would include jurisdiction over the making of the criminal law and the final appellate nature of the Supreme Court of Canada;
9. Environment in the areas of federal jurisdiction;
10. Language in federal institutions.
It is in these 10 critical areas that jurisdiction cannot be claimed exclusively by the provinces without a major upheaval to the federal system of Canada and the nature of representation in the federal institutions of the nation, in particular the House of Commons. However, I am also suggesting that these areas should be looked at and a new division-of-powers structure evolved for another reason, which I am not afraid to say.
I suggest that as long as there are radical separatist forces in Quebec such as the opposition Parti quebecois -- I should say the present leadership of the Parti quebecois; other times and leaders of that party were not as separatist as the present leadership -- there will be demands that the province of Quebec take back some or all of the essential powers listed above. The simple fact we have to come to terms with is that this nation cannot stop itself from being thrown constantly into constitutional crises if a structure is not put into place which would be prepared to deal with the threat of the radical separatists at any time.
1030
The structure I suggest to put Canada on a path of constitutional security is as follows. Before I go into the details of this, let me explain it in very simple language. The idea behind what I am going to be suggesting next is something you may be familiar with in the context of your own domestic relations. If you have a child or a partner who is constantly threatening to leave, one of the ways to handle the situation is to work out an arrangement where you say, "You can leave at any time, provided the following steps are followed." If those steps are reasonable and they are laid out clearly, I am not sure those threats to leave will be made as often as they were made in the past. I think we have to face that reality.
With this simple thesis in mind, let me tell you the division-of-powers structure I am proposing for these 10 essential areas. Any province can seek complete jurisdiction over any or all of the above essential powers, with the exception of jurisdiction over the first nations and lands reserved for them, in a provincial referendum. However, if a provincial electorate opts for complete jurisdiction over any or all of these 10 essential powers, federal seats in the House of Commons will also be cut according to the percentage of essential powers claimed exclusively by the province.
To determine this, referendums held to determine exclusive jurisdiction over the 10 essential areas will be done on the basis of federal constituencies. Those ridings with the highest votes for complete jurisdiction would lose their federal members until the requisite percentage is reached.
If a province claimed exclusivity over all the essential powers, with the exception of currency -- I say the exception of currency because even the Parti quebecois would want to leave currency with the rest of Canada and want to continue using the Canadian dollar -- the province would accede to the status of a fully sovereign independent state with no representation in the House of Commons. There could be representation in a reformed Senate, but as far as the House of Commons would be concerned, there would be no representation.
Repayment of that province's share of the federal debt would have to take place, whether immediately or amortized over time. There are many formulas suggested for how this can be done. There will be a sizeable financial incentive not to opt for complete sovereignty. There will also be a sizeable financial and political incentive not to demand exclusivity over powers not necessary for the protection of the cultural, linguistic and social self-identity and determination of the people of each province.
I want to emphasize that point, because the division-of-powers structure I am suggesting also takes care of the desire of distinct peoples to have as much autonomy as they feel necessary for their own self-identity and self-determination. I am not trying to argue against that to undermine that quest.
Finally, if exclusive jurisdiction is claimed by any province after a provincial referendum over natives and lands reserved for natives, the provision in section 91 of the Constitution Act, then the native peoples must have a similar right of self-determination. They may have a similar right already under international law. However, the native peoples of Canada are the most sacred of trusts imposed upon the federal entity of Canada from its very inception. If there is no reconciliation between a province which wishes to separate and its native peoples, then that province would have to make a unilateral declaration of independence and rely on the international community to recognize its separate sovereignty under international law. Canada, however, would be morally bound to argue against such a UDI if the native issues in that province were not resolved.
Third, among the factors making it financially and economically attractive to be integrated into a new Canadian federal structure would be potential actual access by a province to a constitutionally entrenched interregional compensation fund. This fund would primarily function as a means to ensure adequate finances for the disparate regions of Canada. I am suggesting that a minimum of 30% of the amounts designated by the federal government for public spending should be channelled to the fund.
Provinces would be able to draw upon the fund to provide specified public services comparable to other regions of the country in accordance with a needs formula based inter alia on population density, income, immigration and unemployment. Maintenance of and access to the fund would be regarded as a fundamental element of equity in the Canadian Constitution.
I do not think I am telling you anything new, when at least one province, namely, Newfoundland, will insist that something like this would have to be written into the Canadian Constitution in the next round.
I should also mention that there are various federal countries around the world that have gone through problems similar to ours that have come up with a similar type of interregional compensation fund.
I have outlined suggestions for constitutional reforms to the Senate, the constitutional amending procedure and aboriginal rights elsewhere. I would be happy to restate my detailed suggestions for reform to these areas at a convenient time and place, or in the question period.
In conclusion, I want to emphasize some of the fundamental principles underlying my detailed suggestions. Underlying all my proposals for constitutional reforms are the lessons learned from the Meech Lake debacle. One of the most critical lessons to be learned from that sad episode in the history of our nation is that equality has taken on an immense significance in the Canadian body politic. Some of this I attribute to the legalization of Canadian political life by the Canadian Charter of Rights and Freedoms.
However, the fact remains that, at least in Canada outside Quebec, there is a large majority which wants to see, both in form and in substance, the idea of equality between provinces preserved in the next, most critical round of constitutional reform, even though it has never historically been part of our fundamental constitutional tenets. Despite Premier Wells's assertions to the contrary, the history of this country since its inception has shown equal concern and respect for the provinces by treating them differently on many occasions and according special status to some to account for specific needs and concerns. Newfoundland itself has been accorded special treatment in certain areas in the past.
However, my suggestions for a new division of powers takes into account the new reality that all provinces must be seen to be treated equally, because Constitution-making is perhaps the ultimate art of the possible. However, at the same time, the scheme allows the people of each province to determine and to decide whether they desire special powers to self-determine and reinforce the distinctiveness of their societies. All the people of all the provinces will have that ability. It will be the people who decide the political and constitutional identity of their province and their nation, not self-serving constitutional elites.
If the people are allowed to so speak, my prediction is that a strong, united Canada, with a Quebec that has a sense of security and self-identity, will emerge. Therefore, my final words will be: Let the people of this great nation bespeak its true character and identity. Let nation-destroying self-interest be silenced.
1040
The Vice-Chair: Thank you very much for your presentation. There are a number of questions. We will allow members a little leeway with regard to the length of their questions. We have some time left.
Mr Winninger: I heard your presentation, Professor Mendes, last February. I found it compelling then and I find it fascinating now. I am glad we have the opportunity to explore, with a little more time, some of the issues you raise in your papers.
First, with regard to the Canada clause you have drafted, which I find to be a very articulate statement of what Canada may be about, there is a point in your preamble where you describe the sovereignty of our first nations and describe full protection of their existing and inherent treaty and aboriginal rights. As it stands, that is already spelled out in section 35 of the Charter of Rights, and what our native delegations are asking for is an expansion and clarification of that and inclusion of the inherent right to self-government. I wonder if you would go so far as to include the inherent right to self-government in that paragraph. Then I have a couple of other quick points I would like you to answer.
Mr Mendes: Yes, I would. The reason I did not include it is that for the longest time, since 1976, when I presented before the Penner committee on self-government, I have been on record as stating that in my view self-government is not something the first nations will have to negotiate. They have it already. It is part of their inherent aboriginal rights and despite the wording of section 35 they have it and it is contained in the concept of inherent aboriginal rights.
Mr Winninger: So are you then prepared to recognize in your preamble the inherent right to self-government and to recognition?
Mr Mendes: Absolutely. To spell it out absolutely. Yes.
Mr Winninger: Second, in a paper you presented last February you suggested that any legislation that involves the vital interests of the first nations of Canada should have the consent of at least three quarters of the first nations representatives. Now traditionally, decision-making among first nations has been one of consensus and I wondered how your model would comport with the traditional decision-making process of our first nations.
Mr Mendes: My suggestions in my earlier brief to you last February were in the context of a reformed Senate where I was advocating representation of first nations in the Senate. They would be guaranteed representation of five or 10 first nations members in the Senate. The way I proposed that the first nations could be brought into the power structures of this country would be that if any legislation emanating from the House of Commons was deemed to be of vital concern to the first nations, it would require the consent of three quarters of those representatives in the Senate, in a reformed Senate. Now in terms of how that ties in with the traditional first nations method of consensus decision-making, I would hope those first nations representatives would liaise with their representative constituencies before they would cast their votes. There would be the traditional method of consensus decision-making integrated into our structures because the Senate is our institution, at least a non-first nations institution. So you would draw the consensus decision-making into the non-aboriginal institution.
Mr Winninger: Last, if I may, your push-pull model for Confederation recognizes, at least in the revision you presented today, that rights over currency may remain with the federal power and yet that would not be an all-out declaration of sovereignty on the part of a province such as Quebec. Now I note that even the Allaire report acknowledged that currency and customs, as well as debt, should remain a federal responsibility. Would you be prepared to include customs and defence as well as currency in the exception before you have what might be regarded as an all-out declaration of sovereignty that would take away representation federally in those areas and also funding?
Mr Mendes: Yes, if a sovereign Quebec was still willing I think it would have to. If it is going to be involved in economic association with the rest of Canada in a common market type enterprise, it would have to allow federal jurisdiction over elements of foreign trade, including customs and tariffs, maybe even shipping and navigation, too.
Mr Winninger: So those could remain exclusive federal powers?
Mr Mendes: Right.
Mr Drainville: I thank you for your very interesting presentation. I am interested in two or three points that came up. The first is the direct application to the Supreme Court. One of the concerns that has been expressed in the last while through the members of the legal profession as well as those who sit on the bench is that, with the change in Canada to the acceptance of the Charter of Rights and Freedoms, right now the Supreme Court is totally overburdened as it is. I am trying to understand, because I think the system that you put forward has possibilities, how we could provide such a direct application to the Supreme Court without causing more problems than we already have with the legal system?
Mr Mendes: That is one reason I suggested having an intermediate step, a direct reference to the Federal Court; ie, the federal trial court and the Federal Court of Appeal. The mechanism the Supreme Court has used quite well to control its docket, or to control its workload, is to refuse leave to appeal from the Federal Court of Appeal if it agrees in essence with what the Federal Court of Appeal has said. They will say, "Leave to appeal has been denied." Okay? So that is one way you can control the workload. That is why I included as a separate alternative a reference to the federal trial court and Federal Court of Appeal.
To lessen the expense involved, maybe you want to cut out the federal trial court. Maybe you just want a direct reference to the Federal Court of Appeal, but that is unusual. Usually if you are going to send stuff to the Federal Court of Appeal you must send it at least to the federal trial court.
Mr Drainville: In terms of the comments you made about a province opting out eventually because it takes on responsibilities for certain areas that are acknowledged to be areas that are under federal jurisdiction -- if I am not putting this question exactly accurately please correct me -- you indicated it might then lose its membership in the House of Commons but might retain it in the reformed Senate. Obviously there are a lot of things in there that I do not quite understand so perhaps you could explain a little bit about how that might happen.
Mr Mendes: Sure. Again, I am going to have to go into the barest details because obviously I could go on for hours as to the details of what I am proposing. I want to clarify something first. I am not saying that all federal powers will result in a loss of representation in the House of Commons. It is only the 10 essential areas. I am not sure really that at least the present government of Quebec wants to take back any of those 10 areas. Maybe one; I can think of one where it has made noises about taking it back. But at least the present Liberal government in Quebec will not want to take back. The present Liberal government I think will be happy with the areas of power-sharing, being able to have considerable autonomy through a power-sharing arrangement, as I have suggested, or exclusive competence with financial consequences.
If they do opt to take back some of those 10 essential areas, there would be a reduction in the House of Commons. Now if the Parti quebecois came to power, obviously it would take back a hell of a lot apart from the two you have mentioned. However, they would still want to have an economic union with the rest of Canada. That is where I think the reformed Senate would play a critical role. The structure for a reformed Senate that I suggested to this committee last February was a form of triple E Senate where you have each province sending the same amount of representatives plus representation from the north, the Yukon and Northwest Territories, and a guaranteed first nations representation.
I suggested in the brief I presented to this committee last February that even a sovereign Quebec may want to get involved in the Senate because it would want to have a say in the areas that it has allowed the federal government to retain, such as customs and tariffs and currency, and it would have a voice in shaping that policy. That structure accords with this notion that is now gaining currency in Quebec of the so-called new superstructure of a renewed Canadian federation. The Senate could be part of that new superstructure.
Mr Drainville: Thank you for that. In terms of the interregional compensation fund, you say this fund would primarily function as a means to ensure adequate finances for the disparate regions of Canada, that a minimum of 30% of the amount designated by the federal government for public spending could be channelled to the fund. The 30% figure: I am just interested how you came at that.
Mr Mendes: I have been studying other federations which have gone through crisis and one of the federations which intrigues me a fair bit is Spain. Spain went through a lot of the gut-wrenching stuff that we are going through now after the fall of its dictatorship. One of the key elements in this new constitution was such a fund where the federal government allocated at least 30% of its public spending to this fund to ensure that the disparate regions of Spain would offer similar comparable public services.
Mr Drainville: So the 30% figure is based upon the experience of Spain as opposed to looking at the economic situation and needs in Canada.
Mr Mendes: That solution came about after a lot of study and consultation. I think if it can work for one country, it could work for us.
1050
Mr Grandmaître: I am looking at your very interesting presentation. I think you have lost total confidence in the central government, the existing system. Am I right or wrong?
Mrs Y. O'Neill: A leading question.
Mr Mendes: That is a leading question, and as a lawyer I am determined not to get sucked into those questions. It is not so much that I have lost total confidence in the present system. It is just that I think we are seeing what I call historical catharsis at this point in Canadian history. We have been sort of sailing along for the past 123 years pretending that we have all settled the fundamental questions of our society. We have not. We have not from day one. For example, we have not, from day one, figured out what exactly the role of collectivity vis-a-vis the individual is going to be. We have to determine that now, now that we have reached the constitutional cathartic moment. Because of that, there is no alternative but a wholesale restructuring.
It is not so much a question of me losing confidence; it is the question of history losing confidence and, as a result, we have to have a new structure for our society.
Mr Grandmaître: This new structure, professor, you would accomplish this through referenda?
Mr Mendes: With this new structure, one of the elements I worry about -- I think perhaps this could be behind your question and let me bring it out at the moment -- is whether decisions will be made on behalf of the people which people do not agree with. I worry, for example, and I am only saying it hypothetically, about the Premier of Alberta deciding that he should get back for his province a whole bunch of powers which the people of Alberta fundamentally disagree with. If you are going to involve a Canadian identity, it should be the people who speak.
I caught a bit of the presentation by the National Action Committee on the Status of Women yesterday. I think you are starting to realize that when the people speak, especially to a representative organization such as NAC, the people in the rest of Canada, outside Quebec, want a strong central government despite what the provincial premiers may want. However, the people of Quebec may opt for a greater degree of autonomy.
Let the people speak. Do not let the self-serving constitutional elite speak. That is my fundamental disagreement and I am going to bring it up now because I am sure somebody is going to ask me questions about the Group of 22's findings. I am vehemently opposed to that for that very reason. I want the people to decide. I do not want constitutional elites to decide. Not me, not anyone else, but the people.
Mr Grandmaître: In looking at your power-sharing formula or arrangements, I find it very interesting. I think you are agreeing with the Belanger-Campeau commission and also the Allaire report. I am very surprised because most people -- well, outside of Quebec anyway -- do not agree with the Allaire report for the simple reason that it is asking for too much or would be expecting too much from the rest of Canada.
In your initial opening remarks, professor, you pointed out very clearly that misunderstanding or lack of understanding of the Meech Lake accord created a very sombre humour in Canada. If we were to go with your eight, let us call them power-sharing arrangements, do you not think we would create more confusion? They could not understand the Meech Lake accord. How could they go through eight different power-sharing arrangements? It would take 850 years. It took us 125.
Mr Mendes: Let me reply to your question in two specific parts, maybe three. First, while it may seem that I am agreeing with Allaire and the Belanger-Campeau commission in one respect, I am fundamentally not. They are suggesting that the same amount of devolution be applied to all the provinces and I think that is fundamentally at odds with the wishes of the people of Canada outside Quebec. They do not want massive devolution of powers outside Quebec. The people outside Quebec want a strong central government. They see the central government as their national government, as NAC pointed out yesterday.
In that respect, I am fundamentally at odds both with Allaire and Belanger-Campeau and the Group of 22 because I think if you let the people speak they will let their self-identity be known. I hope this committee, when you travel across the nation, discusses this problem. I would be willing to put a lot of money on it that you will find that right across this nation, when you go travelling, you will find that the people -- not the elites, but the people -- outside Quebec will want a strong central government and they may very well decide against any devolution of powers outside Quebec. I would not be surprised if that was the result, whereas Quebec would opt for taking back some of the powers. So you would have an asymmetrical federalism based on equality.
Mr Grandmaître: Basically you are agreeing with me that we need a strong central government?
Mr Mendes: That is right, but it would be the people who decide, not the elites.
Mrs Y. O'Neill: A short question first, Professor Mendes, and I am very pleased you came back. Particularly when we brought the hearings to Toronto here at the end of February, we had a lot of requests for a Canada clause. You have mentioned several groups within your "whereases" and I am wondering how far that has been vetted among the groups that are so mentioned, the diverse religions, cultures, races, colours within Canada. Have you tested this with those groups or only with politicians?
Mr Mendes: I have tested it with anyone but politicians.
Mrs Y. O'Neill: Okay. That is likely very helpful here.
Mr Mendes: I can tell you that I have met with considerable enthusiasm by first nations members, by women's groups, by the multicultural community. There is a lot of enthusiasm for such a clause.
Mrs Y. O'Neill: Thank you so much for your work on it. I want to say something, and I think my remarks really flow from both Mr Grandmaître's and Mr Winninger's remarks. I have some difficulty with the push-pull concept. I think those of us who work in government, and therefore work with people all the time, hopefully do have as one of our main goals the helping of individuals on a daily basis to a better sense of self-worth. At least that seems to be a goal that should be government's and should be government policy, and I have seen it in many politicians.
You compared this to family structures. I also have a lot of difficulty when people get into very detailed settlements, whether it be custody or other forms of family relationships. I guess what I am saying is that I find it extremely difficult to understand how one can legislate self-worth or a sense of self-worth or attainment of self-worth. This is what I have trouble with when you talk about the percentage for the aboriginals, when you talk about the fund. It is all so very complex.
It may go back to the original statement you made, I think, in reference to Mr Grandmaître, that we had not dealt with a lot of these issues and that Canada just sort of seems to slide along. I am wondering if that is the way Canada has to operate. I know we have a division of powers. I know that is in the BNA Act. I know that likely is going to change very soon. But when you start to talk about percentages and very strong delineations in legislation, I do not really know whether Canadians, first of all, want that, or want to put their minds to really understanding what all that means and making the decision to that point in a referendum.
Mr Mendes: Let me again answer your question in several parts. First of all, we can slide over the precipice. What is your alternative? If we just slide along, we may slide along into the breakup of this country. That is my number one response.
The second response is that I am getting very uncomfortable with this idea often put about, especially by politicians, that the people will find things too complex for them to understand. As one of the very few people who has actually read the entire free trade agreement, because my other interest is international business, I was amazed that politicians felt it was simple enough that they could transmit the message to the people. The actual treaty is about that thick, and I wonder how many politicians themselves have read through the whole thing. Yet they felt it was simple enough that they could present it to the people in what essentially was a referendum election, but not eight areas of division of powers?
Mrs Y. O'Neill: Okay, I will accept that. I do have difficulty, as I say, in the firmness of your position. Maybe it is a beginning position; I do not know. I think people are certainly capable of much more than politicians think. I agree with you. I think this is a problem that has to be dealt with, and I appreciate your contribution to that.
1100
Mr White: When I read through your document -- the issues you talk about for federal-provincial power-sharing arrangements, or potential arrangements -- I want to counterpoint that to some degree with the other document I have here about the Canada clause which identifies the essential identities and values of the land and people of Canada.
As I read the powers that should be accessible to power-sharing, it strikes me that many of those areas are ones I would consider to be essential issues around the values of what we have had as Canadians -- issues around health, education, culture. I can also understand very well why those should be accessible to power-sharing, and yet the guarantee of those would be through something which would not be so closely entrenched.
I am interested in hearing further about the Spanish experience. The kind of agreement between the provincial and federal governments, as you know, is sometimes more honoured in the breach than in the follow-through, especially when it comes to established programs funding recently. I guess my concern here is, do you see a means of strengthening those values, either in the document or as a fundamental right, so that the people of Canada would have that assurance?
Mr Mendes: Let me take health, the one you mention in particular, but it can apply to any of the other eight areas, I guess. What we have now is much worse than what I am proposing. What we have now is essentially a form of power-sharing, with the federal government influencing health-dollar spending through its transfer payments. As you all well know, that is being slowly reduced and we are moving over somewhat. I think by 1993 or 1995 Ontario will have no transfers coming to it from the federal government in the area of health. What then? Suddenly there will be no safeguards to ensure the national standards that are there in the Canada Health Act.
Mr White: Precisely my concern.
Mr Mendes: Basically, the system I am putting into place will guarantee national standards being enforceable. Let's take, for example, the health system. Let's assume this system is acceptable to the majority of governments and the people of Canada. The federal government and the provinces would enter into negotiations and consult to come up with national standards similar to those in the Canada Health Act, the five principles of portability, etc. That would then be entrenched in national legislation called "Canadian directives."
If any province were to violate the standards in the course of implementing those Canadian directives, you would have individuals having legal recourse to ensure compliance all the way up to the Supreme Court of Canada. That is a much better system than what we have right now, and it is based on the model of the European Community. So in some respects you are guaranteeing health as a fundamental right of Canadians if you opt for this system.
The Chair: Mr White, I am afraid I am going to have to cut you off, unless it is very short. There are two other members who want to speak and we have about five minutes left.
Mr White: I have just a couple of very short things.
The Chair: I will time you.
Mr White: Would it be possible to define that collectivity as a freedom, as you have for the economic issues above?
Mr Mendes: If you define it without the structure, if you just define it as a right to a freedom, it is not enforceable. There is no structure to enforce it. If you put it into a charter of social and economic rights -- I have discussed this a lot with members of the provincial government -- it is unenforceable. You cannot ask a judge for an injunction to have a good health care system. This way you can enforce it. It is detailed, it is precise, it is a working system which can be enforced.
Mr McLean: Professor, I have enjoyed your remarks here this morning. It is obvious you have done an awful lot of work on the Canada clause. I have a question pertaining to the reform of the Senate. Could you elaborate on some of the reforms you anticipate should take place to reform the Senate?
Mr Mendes: In my brief to you last February, I suggested that we abolish the present Senate, which I think most Canadians would be in agreement with, and come up with a version of a triple E Senate. I am even suggesting getting rid of the name "Senate," because in some respects that is a throwback to our ties with Britain and a system based on bringing an aristocratic element into our society.
For reform of a triple E Senate, basically each province would send equal numbers, but they would be grouped within six regions of Canada. Each region would have the right of veto over legislation which directly affected it, but the right of veto would have to be reached by a consensus vote, such as three quarters, etc.
In that respect I am retaining to some extent Ontario and Quebec's traditional role of influence -- not dominance; I do not think any province has a right to dominance any more -- in this reformed institution, because they could theoretically veto legislation which was antithetical to Ontario's best interests by a requisite three quarters of the representation. It would also guarantee native representation in this Senate, this reformed upper House or whatever you call it.
I am also suggesting that this is the institution which would have a subsidiary role of focusing in on Canada's economic situation, an institution which would suggest regional and national industrial policies.
The third facet of constitutional reform, which I have not mentioned, is the economy. Most people do not live or die on the Constitution; they live or die on the economy. The economy has to be addressed, and I would suggest that the upper House also be a place where regional and national industrial policies be examined and proposed, because we desperately need one. This economy is dying and we desperately need new strategies to revive it. I suggest that a regional House would be able to look at the strengths, the comparative advantages of each region, and come up with regional industrial policies and then national policies, having looked at the regional strengths.
A lot of my suggestions for the upper House is based on the German Bundesrat, or upper House, which I think is one of the most successful upper houses in the world.
The Vice-Chair: A very short question, Mr Curling. We are running out of time.
Mr Curling: Thank you very much, Mr Chairman, for even accommodating me at such a late time.
Professor, your presentation here had me thinking in so many directions, so many thoughts, and there are so many questions I would like to ask you. I will just make a quick comment and ask you a very short question, because the comment will be important.
I fully agree with you that it is time we start defining what Canada is all about. Leaving it alone and letting it just rumble along reminds us of the saying, "If it's not broken, why fix it?" Sometimes we never see the crack. The hairline crack can be devastating itself. It goes back to the other saying, "You either pay me now or pay me later."
There are many things in your presentation that -- I would not like to use the word "bothered" me, but brought me to a point of provoking the thought itself. I notice you base most of the decision on what should be done on the referendum. The present system here in Canada is a three-party system, so when we go, those who get the majority sometimes do not get the majority vote of the people, but as a percentage of that maybe far less than even 45%, far less than 50%. So you have brought it down to more or less a referendum.
Would you see Canada legislating that when one votes it be compulsory or one will be fined, so that when we do make a decision on all that we have said, all people participate? People would lose even their representation on certain issues in certain regions if they do not come up to a certain percentage level, and they have also reduced it to a yes and no; in other words, the referendum aspect of it. Therefore, it is a free vote, as we call a democracy, and only 40% would have made that decision. Would you feel that would be an adequate decision?
1110
Mr Mendes: I think you are misunderstanding a lot of what I am saying. First, in terms of referendums, the reason I am proposing referendums for the power-sharing arrangements is I want people to decide. I do not want constitutional elites, who may change and be gone into the backwoods of history within a few years, to decide to take back a sizeable amount of powers from the federal government. If you let the people speak, that is a decision which will have legitimacy for a long time.
That is my fundamental reason for referendums. I do not want provincial premiers making decisions on taking back huge numbers of powers from the central government, because I do not think the people want that. You may have a Premier who has been elected, and some people would say the standard majority now is almost 40% or sometimes even under 40%. You can have a majority under 40% if there are three parties in the race. If there are more than three parties, you can even have less than 30%.
Mr Curling: If 6% of the people voted in the referendum, and 60% of that amount voted for it --
Mr Mendes: I do not think that if you have a referendum on something as critical as the nature of your country, only 6% will vote. I think those are absurd hypotheticals which would not be realized. If you have a provincial referendum which is deciding the nature of your country, I think more than 6% is going to turn out.
The Vice-Chair: Thank you very much. Unfortunately, we have gone a little bit over our time. I myself had questions, and I wish we would have time to wrap up. On behalf of the committee, I would just caution that sometimes we talk about our federal institution as if it does not work. I would myself personally say that it has worked fairly well over 120-odd years in providing us with a fairly good standard of living and fairly good programs, etc. But I would allow you maybe a minute if you have something you can say in a minute to wrap up, and from there we are going to adjourn for a couple of minutes.
Mr Mendes: I know you are travelling the country, and quite honestly I would be delighted if you could test some of these ideas across the country because I think you will find that the people and the representatives in other provincial legislatures would find a lot of agreement with us, even in Quebec. I gather you are going to be meeting the committee in Quebec, too. I would be delighted if you tested some of these ideas because I think you will find a national consensus on some of these ideas.
The committee recessed at 1113.
1121
KATHLEEN RUFF
The Vice-Chair: The committee will come to order. Presently we have before us Ms Kathleen Ruff, who is going to present to us. We were late starting this morning, so we will allow a little bit more time at the end.
Si vous voulez faire votre presentation, si vous êtes prête, a n'importe quel temps.
Ms Ruff: I would like to first say that I am speaking for myself, and I am speaking mostly from a national perspective. I am living in Quebec and I am involved with a national program called the court challenges program, which funds charter test cases across the country. I have had a long involvement in human rights issues in many regions of Canada. I was director of the British Columbia Human Rights Commission for about six years, and in the 1970s I was president of the Canadian Association of Statutory Human Rights Agencies a couple of times. I was the founding publisher of the Canadian Human Rights Reporter and the Canadian Human Rights Advocate, and I was with the CBC Ombudsman for one short period. The last number of years I have been director of the court challenges program and now I am the chair of the equality rights panel of the court challenges program. That is the kind of perspective I am coming from.
I would like to thank you for inviting me to appear before you. I have provided copies of my notes. I am sorry you did not get them in advance but you do have them, I believe. I have spent most of my life working with groups, such as women, racial minorities and persons with a disability, who are traditionally and typically shut out of the decision-making process across the board in our society. The result of that exclusion is that decisions are bad, do not hold up and are divisive, and the disadvantage of those who are excluded increases.
If native people had been part of the decision-making process, would the waters and lands around Grassy Narrows, where they had lived and made decisions successfully for thousands of years, be the polluted nightmare and source of despair and death they are today? There was not just one killing that happened there. I think the native people have been killed by our society, too.
If poverty-stricken women who made the mistake of believing in the marriage fairy tale and are now raising their children as single mothers on welfare were part of the decision-making process, would cost-sharing payments and equalization payments for social services, health and education be slashed as they are today?
The Constitution has a whole special section on equalization and regional disparities in which the governments of Canada make solemn constitutional commitments to provide "essential public services of reasonable quality to all Canadians" and to "ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation."
But as the single mother on welfare I mentioned could tell us, this is not what is happening out there in Canada. In fact, as the National Council of Welfare has just documented, the federal government is unilaterally doing the exact opposite and ending equalization payments to the provinces. The council expresses the fear that if this trend continues, every last penny of federal cash for health and higher education will disappear within a few years, regional disparities will be magnified, medicare will effectively be dead as a national health insurance system, and minimal standards will be gone.
There has been no discussion, no democratic participation, in what is a major change in Canada's social policy, a major change in federal-provincial relations, and a major reversal of a constitutionally enshrined commitment.
I think it is important to draw some conclusions here:
1. Having a provision in the Constitution does not necessarily mean anything at all.
2. This is particularly so when the decision-making is a closed, unilateral process.
3. This is particularly so when those who will be hurt by the constitutional violation are members of groups who have traditionally and typically been powerless and excluded.
In other words, there is a lot of hypocrisy around the Constitution, and it is important that we do not just look at words on paper but how to make sure they have real meaning. When decision-making is a closed process of a tiny elite, democracy is undermined; constitutional rights are undermined.
Je crois que la democratie devrait vouloir dire beaucoup plus que juste faire une petite marque sur un morceau de papier tous les quatre ou cinq ans. La constitution devrait dire que chaque membre de la societe ait les moyens de vraiment s'assurer que les personnes soient traitees d'une façon vraiment equitable, et que les garanties constitutionnelles soient vraiment respectees dans la realite quotidienne des Canadiens.
Aller devant les tribunaux pour essayer de faire valoir les droits constitutionnels n'est pas l'approche ideale. Les personnes dont les droits sont les plus supprimes sont souvent les mêmes personnes qui ont les moindres ressources pour se servir du système juridique. C'est un processus long, complexe et lent, et normalement quand on va devant les tribunaux, c'est juste après que les droits ont ete brimes. Alors, dans un sens, les gens ont deja souffert, puis ils vont devant les tribunaux après avoir souffert des desavantages.
Les juges, en general, representent le même type de gens que ceux qui ont pris les decisions au debut, des gens qui sont privilegies et qui viennent d'une petite elite de personnes. En general, les juges sont en arrière des reformes sociales, pas en avant. Je crois que les francophones partout au Canada sont au courant de ça, si on regarde en ce moment. La Cour suprême du Canada a rendu des decisions constitutionnelles respectant les droits des francophones partout au pays, et surtout les droits scolaires. Mais elles ne sont pas repectees par les provinces. La province de Saskatchewan, par exemple, a dit très clairement qu'elle n'allait pas respecter la decision de la Cour suprême du Canada. Alors, je crois qu'il faut vraiment regarder si les droits constitutionnels veulent vraiment dire quelque chose, s'ils sont respectes en realite ou s'ils ne sont que des mots ecrits sur papier.
I am not saying not to use the court process. Since I work with the court challenges program it would be very strange if I said that. Trying to enforce constitutional rights in the courts is essential as a backup. It is a line of defence between us, the citizens, and in particular between us the disempowered and disadvantaged, and tyranny. But we should be able to do better than that.
As I said, even winning Constitutional battles in the courts does not mean they will necessarily be respected. As the francophone minority in Saskatchewan will tell you, things have not changed, even though they won. If you speak to aboriginal peoples across this country, they won in the Supreme Court of Canada in the Sparrow decision, which clearly said the federal government has a fiduciary duty to protect the interests of aboriginal peoples. Where is the constitutional role of the federal government in James Bay, for example, when they stand up in front of the court and say: "None of our business. We can't enforce any rights in this area"? Who is breaking the law in this country?
1130
How can we make the Constitution what it is supposed to be, a democratic document, a meaningful document. The process determines where you get. We have seen how badly the closed process worked prior to the patriation of the Constitution in 1982. Women, persons with a disability, aboriginal peoples were forced to take the process by storm because they had been excluded, and consequently their concerns had been excluded.
We have seen the appalling failure of the Meech Lake process, where the process was so bad that it excluded just about everyone in the country. Gambling in a closet is no way to run a democracy. It will destroy a country sooner or later, and we are seeing it happen sooner rather than later.
The Constitution puts forward the highest values of a country. Those values, the Constitution, the country, are not for a tiny group of politicians behind closed doors with their hand-picked experts to secretly decide and then hand down a fait accompli, particularly when they are in no way representative of the population of the country, in terms of their all coming, or almost exclusively, from the same background. I did not notice any women in that closet.
Amending the Constitution should involve participatory democracy. A constituent assembly would allow that participation. It should include proper representation of all the groups in society: women, racial and ethnic minorities, persons with a disability, persons who are poor, the elderly, lesbians and gays and others.
It should be set up at arm's length from government. A credible, independent agency or group should organize the constituent assembly. The constituent assembly would be provided with information papers and research documents to assist them in their discussions and decision-making so they can do an intelligent and competent job. They would address the kinds of questions you have put forward in your research document.
Quebec and aboriginal peoples would have their own parallel processes, shaped and decided by themselves. Quebec and aboriginal peoples must decide for themselves. Who could possibly pretend, in spite of the simplistic rhetoric from some quarters, that the will of English Canada can be imposed by force, by the army, on Quebec or on aboriginal peoples? Who seriously could pretend that? The bottom line is you cannot hold a country together by force.
What we need to do is discuss and put forward our own positive vision for the country, and perhaps have suggestions and ideas for how things might work well between ourselves and Quebec or between ourselves and aboriginal peoples. But above all, we must recognize their right to think through and put forward their vision. Then we must work positively and co-operatively to find a way, to develop a model, to innovate a relationship that works well for all of us. I believe that is perfectly possible.
The first thing would be to have a truly participatory process for ourselves. I do not mean a superficial process -- this is not meant to be critical of what you are doing -- like going around the country at great expense, asking people their view, offering a phone-in line or having a referendum. People need information to be able to truly participate. It is like informed consent. Consent on its own means very little. Without necessary information, consent or participation can simply be a recycling of misinformation and bias.
Because they are not present in the decision-making processes of this country, most disadvantaged groups have worked very hard to become informed, to organize and to speak for themselves, to participate responsibly and democratically. That is a place to begin. We see sound, competent organizations across this country that have been there for many years representing disadvantaged groups.
With information and the means to come together, these groups can speak for themselves and participate effectively. We have had that experience at the court challenges program, where for the past three years we have brought together representatives of the whole variety of equality-seeking groups from across the country to work together for a number of days and share their ideas, information and experience on using constitutional rights.
It has been very impressive to see the level of seriousness, knowledge, solidarity and generosity displayed. Groups representing women, racial and ethnic minorities, poor people, persons with a disability, Quebec groups, children, aboriginal groups, prisoners' rights groups, lesbians and gays and other disadvantaged groups were present and shared in the discussions and in the consensus that came from those meetings. They have formed an ongoing network called the Canadian Equality Network to carry on working together. Having had that experience three times -- with virtually no funding, I might add -- of a quasi-constituent assembly, I can say it was extremely successful, valuable, unifying and productive. Ordinary people really can be trusted, given half a chance. In fact they are quite impressive.
In addressing the questions raised in your discussion document, I would like to repeat that looking just at the words put into the Constitution is not sufficient. You must look at whether and how those words can be implemented in reality. Second, the views of the constituent assembly, the views of the Quebec process and the views of the aboriginal process would be the best ways to get answers to these questions.
I speak only for myself and I have not sufficient information to answer some of the questions raised. I took your paper very seriously. I have tried to answer all of your multitude of questions, but I do want to point out that these are just responses from myself, and I think responses coming from a constituent assembly and from aboriginal groups and Quebec groups would be most important. I would certainly want to listen to them. These are not fixed positions. These are starting-off discussion points from my personal experience.
Canada clause: Personally, I believe that a Canada clause would be a positive addition and should be included. It would say that democracy means the full, fair and effective participation of all members of society in the running of that society, and that governments in Canada will make every effort to bring such democratic participation into being, and in particular will take specific, positive measures to overcome the past discriminatory exclusion of disempowered groups.
The Canada clause would include the Charter of Rights, social and economic rights and the right of Quebec and the right of aboriginal peoples to self-determination. It would speak of multiculturalism, women, disabled persons, the linguistic duality of Canada and environmental rights. The Canada clause would affirm our values in a positive way. It could be used for public support and political pressure when politicians are being lobbied, usually in secret, by powerful interests to sell out on our values. It could be used in court as an interpretative directive to reinforce arguments in a particular case.
Multiculturalism, women and disabled persons: Canada's multicultural heritage and a commitment to equal respect for the many origins, creeds and cultures that shape our society, and gender equality rights and the rights of disabled persons should be recognized as fundamental characteristics of Canada in the Canada clause.
Equality rights in section 15 of the charter should include protection on the basis of sexual orientation.
Equality rights could be strengthened -- you ask a number of times how the rights of these groups could be strengthened -- in the Constitution by making it clear that positive remedies can be ordered to rectify discrimination.
Presently, the federal government is fighting in court against cases of disadvantaged groups to say that the only result you can achieve with your Constitution is to strike something down, to take it away, so that if women were denied a certain benefit that men had, all you could gain as a remedy from the court is that it would take it away from men, and then you would be equal. That is not a particularly meaningful vision of equality. It is like an equal pay case, saying that if a woman complains of discrimination in pay, we will lower the man's pay -- no more discrimination. So the issue of remedy is an important practical one in the Constitution.
The Constitution should also make it clear that international human rights laws that Canada has ratified have the force of law in Canada.
1140
The Charter of Rights and social and economic rights: A commitment to the rights and freedoms of all Canadians should be recognized in a Canada clause as a fundamental characteristic of Canada. Parliament and legislatures should have the power to override rights and freedoms guaranteed in the charter, but only with a two-thirds majority. The override declaration should expire after three years. Equality rights in section 15 should not be capable of being overridden.
Social and economic rights should be incorporated in the charter. They should be similar to and refer to international covenants on social and economic rights that Canada has ratified. It should be very clear that they refer to the right to dignity and security of individuals who are poor and powerless, not the right of money to make more money, nor the right of the privileged to defend and increase their privilege. I think this is a very important danger that must be watched out for.
The right to an adequate standard of living, the right to housing, employment and employment conditions, health, education and social security should be included. These social and economic rights refer to the basic dignity and basic survival of the poorest and most disempowered members of our society. If we are a decent society, they should not be limited. They should be enforced in the same way as other charter rights.
Aboriginal peoples: Aboriginal peoples should have their own parallel process to determine how they wish to be treated in the Constitution and how they wish to relate to the rest of Canada. I believe the inherent right to aboriginal self-government should be entrenched in the Constitution. I believe aboriginal peoples will have innovative and creative suggestions of how their vision and their self-government can co-exist in a positive fashion alongside ours. We have to listen.
The Yukon and the Northwest Territories should be allowed to determine for themselves what form of government they wish. They should be allowed to participate in all federal-provincial meetings dealing with the future of Canada.
Quebec's future in Canada and the roles of the federal and provincial governments: Quebec's right to self-determination should be recognized. A flexible approach should be adopted that is respectful towards the needs and wishes of English Canada, and the needs and wishes of Quebec. In reality, Quebec already is recognized as a distinct society in the way we operate as a country. This distinctiveness should be recognized in the Constitution.
Within English Canada, the role of the federal government to ensure national standards for social programs is very important. This is a basic value of us as a country, one of the things that holds us together that has enormous unifying support across the country: decent basic minimum social standards of health and education and social services. Concern that the federal government would no longer be able to play this role was one of the major reasons why equality-seeking groups were opposed to and fought against the Meech Lake accord.
The economy: The economic union of Canada should be strengthened in the Constitution. Equalization payments should continue to be the responsibility of the federal government and should be constitutionally entrenched.
Roles of the English and French languages: The linguistic duality of Canada should be recognized as a fundamental characteristic of the country in a Canada clause. The responsibility should continue to belong to the federal government, and should continue even if Quebec should separate.
National institutions and the political system: The Senate should be completely reformed or abolished. Different models or options should be put before the constituent assembly for consideration. If there is to be a Senate, it should be cut free from political patronage. It should be representative of all the different groups in society. The constituent assembly could perhaps name the Senate.
Process of constitutional reform: The legislative model should be supplemented by a constituent assembly model. The constituent assembly should decide what process should be followed for amending the Constitution.
Additional comments: As I have mentioned, words in the Constitution are not sufficient. Access to information, meaningful participation, open processes, power sharing: These are key factors that determine whether constitutional rights in fact have any meaning.
Many countries have fine, ringing constitutions that signify very little. Let's not be one of them.
Practical elements that should be part of the constitutional package are: 1. A commitment by each government to consult affected groups before taking a position on constitutional rights in the courts. Each government's position and strategy on constitutional rights should be an open process with possibility of discussion and participation.
For example, the federal government right now is fighting equality rights in, constitutional cases in the courts. It is a closed process of decision-making. For example, the groups that we funded won an important case for native women, that they should not be sent to the prison for women, because they kill themselves; it is a death sentence. It was won, an enormous, wonderful charter victory under section 15. The federal government says it agrees, but what is it doing? It is back in court trying to turn it down. How come? We have many cases like that. When the government goes to court to use the charter, it should not use it against the people. People do not have the means to fight back.
2. An independent public fund for charter test cases should be created in every province. I think the court challenges program has been one of the finest things in this country. In other provinces, charter rights are being violated in flagrant ways and people cannot fight back. They cannot do anything. They do not have the means to enforce those fine-sounding rights written in the Constitution.
3. Effective access-to-information legislation should be put in place. When governments can keep key information from the public, as they presently do, constitutionally guaranteed rights mean next to nothing.
4. The process of naming bodies that are supposed to protect rights and be watchdogs of government must be kept free of political corruption and abuse and made independent and transparent. Presently, the situation of human rights commissions across this country is shocking, and it means that the commissions have very little independence or credibility. The government should not name its own watchdog. The process used by the court challenges program would be one possible model, where equality-seeking groups submit names of credible, qualified persons and an independent organization appoints persons from the names submitted. That is how the equality rights panel got named, and I am very proud of that.
5. Each government should have annually an accountability session in the Legislature and in a public meeting with equality-seeking groups and the public to examine how much progress has been made in implementing constitutional rights and increasing participatory democracy.
Also, the role of backbenchers and of parliamentary committees should be increased.
Last, the control of money over the political process must be checked. You have a situation, for example, in the United States, where you really do buy an election with political action committees. I think we have seen more of that happening in Canada, where vast amounts of money can be used to buy elections. We have to stop that from happening.
The Vice-Chair: Thank you very much for a most interesting presentation. We have a number of speakers on the list.
Mrs Y. O'Neill: Thank you so much, Ms Ruff. You certainly said a lot of things I believe in. I believe one of the main roles of people like ourselves, people who have taken voluntarily the role you have taken, is to listen. That is an absolute bottom line, to be effective. I picked out a couple of things I wanted to say. I think your definition and explanation of "informed consent" is absolutely crucial. Other than that, we are being abusive.
I am very happy with what you say about the courts. This is really what I was trying to say earlier in my attempt to respond to the previous speaker, Professor Mendes. I am talking to the same one you are, the native women having won that court challenge and now, again, being turned around to fight it. This seems to be the case with many people's lives. I had a constituent in my office last Friday who has been in the courts for 10 years on the same issue. This is basically the 10 best years of her life, from 25 to 35, a lady not at peace. There is something wrong about that. It is a very small matter she is involved in, really.
I feel very strongly that you are telling us some pretty fundamental truths, that we have to see the Constitution as a document that serves, that is living, and is not just, as you say, words on a page. That is a terrific challenge, but people like you will help us.
I am very interested in your constituent assembly experiences. You say you have had some, but they were not really what you would legitimately call constituent assemblies in a formal sense, the way a province may think of this. I have done quite a bit of reading in the last few months, particularly on this whole concept, and it is much more difficult the closer and closer you get to decision-making. It is difficult in the choice of delegates. It is difficult in the veto or recommendations that may come forward from such groups. Could you tell me a little more about what you think can be some of the guidelines as it gets closer? I understand the aboriginals will be calling the things they are going to do with their women and elders and youth constituent assemblies or assemblies on the Constitution.
When we get to the provincial level, we are certainly going to try to have a conference here that is truly reflective of the province. As we begin that process -- we are into it quite deeply right now, and to be fair, to be just, to be reflective is really taking all we have within us to make sure that happens. Even then we cannot be sure. We can only do our best. Could you offer us some guidelines if we do decide that is one of the options we want to look at seriously, and encourage the federal government to look at seriously?
1150
Ms Ruff: The experience we had was that we first made sure we were inclusive of all the different groups in society, and as much as possible allowed them the chance to select for themselves, shape the agenda themselves, and shape the speakers who would be coming themselves. I think it is very important that it be done independent of government and with the involvement of people who have a track record of working with community groups that do not have a vested interest of their own, that have the credibility and competence to set it up.
We did it three years in a row. We had a national meeting of equality-seeking groups for three days, brought them in from every part of the country, native groups, aboriginal groups, all the groups I mentioned. A lot of people thought we would have a riot on our hands. We had no riot. It was enormously supportive and co-operative, with an enormous amount of generosity from groups, such as women's groups, the Women's Legal Education and Action Fund, which has had a lot of experience, talking with other groups where they could share and help them.
Out of those meetings we now have a number of different groups that have organized to have a voice. For example, there is a charter committee on poverty issues, where poverty activists from across the country are working together constructively around how to participate democratically in this country and how to try to use the Constitution and charter rights to mean something. We have a Canadian prisoners' rights network. MARC took its birth from that process, the Minority Action Rights Council that Mr Mendes is involved with. The Canadian Disability Rights Council was a group we worked with very closely to help it get going and speak for itself.
One thing that was very important in our experience was that the people organizing it or getting it going did not have a vested interest and were not trying to power control, but were trying as much as possible to let the affected groups choose who was credible in their eyes and participate in setting the agenda. At that meeting, where 50 or 60 people from across the country came, they were very interested in the idea of a constituent assembly and I think would be extremely willing to co-operate with any process or idea along those lines. There was enormous support for Quebec and recognition of Quebec rights. There was enormous support for aboriginal rights. It was not divisive at that meeting. What was so impressive was the co-operation that was shown. People did not feel threatened by Quebec's distinctiveness, did not feel threatened by aboriginal rights to self-determination, and wanted to help those groups be able to thrive and then to work more strongly together as a country.
Mrs Y. O'Neill: I think those kinds of efforts are absolutely essential, and I hope our conference will be such an effort. I do feel, though, that I have to remind you and ourselves that the reality at this moment in this country is that only politicians can work on this issue at the decision-making level, because that is the way the process is now.
I certainly think this committee has attempted to listen and to get as much input as it can. We have heard over 600 people. We have received literally thousands of exhibits and I think we have been quite attentive to those.
The only thing I can say is that things will change because of efforts like yours, I am sure. We all realize this Constitution has to have a credibility about it, and it has to be reinforced by the people it will affect. But the fact of the matter is that the Premier of this province and the premiers of the other provinces will have to do quite a bit of the speaking, at this point, on this issue. The biggest thing we can do as a committee and that you can do as an extremely experienced witness is to make sure that Mr Rae, in our case, goes to these meetings in the best-informed way he can. That is why I feel this committee's work is so significant.
We know there would be one woman at the table if the meeting were held today. We know this committee does not have a majority of women on it. It would be almost impossible to do that. What I am saying is that I hope more and more women will take their responsibilities as seriously as you have taken yours in your leadership role. We are doing our best, I hope, to encourage women to do that. I thank you so much for your presentation. It has made a mark.
Mr White: I want to commend you for your presentation. I believe as well that it is important for the process to change, just as the Constitution must change. Along with Mrs O'Neill, I think it is important that we achieve a result, but I think even more so it is important to achieve it in a meaningful and healing process. I am very impressed with the issues you mentioned in terms of the Canada clause, the positive values you are stressing here, the values of democracy, participation, basic social rights. I just have a couple of questions.
First, you are suggesting that with this kind of Canada clause, with those positive values being accentuated and the adherence to international human rights laws, it would give some real, effective power to groups such as your own in court. I wonder if you could give an example from some of the things you have thought of or from other experiences in other communities of that kind of positive value being used in court, such as the right to basic housing or education.
Ms Ruff: At this point it is difficult in Canada. The international covenants are not treated as having the force of law in Canada, so we do not have a great deal of that experience, although sometimes in human rights decisions or charter decisions the courts have referred to international human rights law. I think we have seen in Europe how you can have a human rights document that then becomes enforceable in the different countries, so it is not something that has no real power behind it.
I am not saying the Canada clause is going to change the world at all, but I think it would be an opportunity to say some very positive and specific things about what we believe in as a country, and that it would have certain uses, such as being referred to to help interpret charter rights.
Right now, section 7 of the charter talks about the right to security of the person, and it is unknown at this point how the courts will interpret that. Will it mean that someone on welfare has the right to the basic minimum to be healthy? Does a child in Canada have a right to welfare support sufficient so that child's body can grow and it can have a roof over its head for its psychological security and health? We do not know. The chances are not that strong that the courts will interpret it that way. If the international covenants had a recognition and could be enforced in Canada, those international covenants very clearly spell out that security of the person does mean basic minimal standards of health, housing, shelter and so forth. I think that would be very helpful.
Beyond that, I think we do need to look at ways to try to make these things enforceable. Mr Mendes's idea of the directives obviously is one option. I think the ideal way is -- and this is what I am talking about, to some extent -- rather than waiting till people are hurt and damaged, let's also try to open up the power process so that it is not closed. Let's take, for example, the federal government's cutting the equalization payments or its policy on aboriginal peoples. In our approach, if we try to open up the decision-making so governments cannot unilaterally use power in an abusive way, then maybe we could prevent the harm from happening first.
I guess I am a profoundly democratic person. I think the courts are really important, but I think a much better way is if we can have an open process with participation to stop the abuse, rather than going to court and saying the government is abusing these people.
Mr White: In your document you outline the problems a group such as your own faces with using the court process, and it is only through a collective group such as your own that you can pull together the funds you need for those kinds of challenges, whereas courts are typically abused to preserve the rights of money and privilege. In your conclusions you do not make a reference to empowering of groups such as your own to ensure that all parts of our community are represented in the court system. I am wondering whether you could have done that or for what reason you had not done so.
Ms Ruff: No, I could have been more specific on that. I would see it as being in my thinking at the bottom of page 7, where I am talking about bodies that are supposed to protect rights, and I would also include the courts there, that they should be named in a much more independent way to be much more representative.
I think the model that is being put forward in Ontario for protection of vulnerable adults is one where you are looking at a watchdog that is going to protect rights. It is being recognized and said, as I understand it, that instead of the government naming those people, the names will come forward from the groups, from the people who are at risk, so that people who are credible in their eyes will get named. I think this is part of having an open process. When those with power choose the watchdogs who supposedly are going to watch themselves, that is abusive, and that is what we see happening a lot in Canada right now. The court system should be a more open process.
As I understand it, in Ontario, writing to lawyers and asking them to put forward their names is making it clear that this is how this happens. Having a committee with involvement to help, trying to get a balanced representation, who is going to control this power? Is it just one tiny elite in society or is it going to be open?
There is an example on the opposite extreme. You have seen human rights cases across this country where there is a human rights case against the government, like in Saskatchewan and welfare discrimination, violation of the human rights legislation. The government gets to handpick any individual in the province to hear the case. Lo and behold, those individuals do not find violations and do not order remedies and the government does not have to do anything. That has no credibility. That is a shameful thing in this country. It is very important that we stop this from happening. I think your point about the courts is a very important one and part of that.
Mr Drainville: I must say your comments and your presentation very much resonate with many of the feelings I have had myself. Over the last 10 years we have seen how the Charter of Rights has been brought into force, particularly in the area of equality rights.
I have a couple of questions to ask. One is in terms of social and economic rights. At present we have a situation in which we have a charter of what I would call middle-class rights. We have the right to worship as we please, we have the right of freedom of speech and we have the right to vote and a number of other rights, but they are middle-class rights. If you are poor, if you are a visible minority or if you are any one of any number of other groups in society, you are in a situation in which you cannot access many of those rights, by force of society and by force of the power structure which is in society.
That being the case we, or at least I personally perhaps in my own agenda, think it would be wonderful to see a situation in which we could establish and entrench social and economic rights that would be very specific and could provide for things like housing and food and opportunity for employment.
After hearing Professor Mendes today, I also go on to say how good it would be to have that entrenched within the Constitution as well as having the directives he mentioned. He is quite right to say having the directives would provide more concrete legal affirmation that these things had to be done, but there is a sense in which a constitution is greater than that, in the sense that it needs to embody the soul and the spirit and the aspirations of the people of the country.
On your quest to see these kinds of things happen, I want to affirm and say that these are absolutely integral to these discussions on the Constitution. If our country is going to move forward and if we are going to begin to have a vision of what we want to be as people in Canada, we have to be able to push these.
One of my concerns is about the language and making the system accountable to the language in the charter. You mention the Canada clause. It also would be part of the Charter of Rights and the social and economic rights. On the problem with the language, I remember I was recently involved with some native people who happened to have been trying to defend their land from some decisions governments had made. There were people in those court cases who raised the issue. At the beginning of the Charter of Rights it says that we Canadians believe in "the supremacy of God and the rule of law." That is in the Charter of Rights and Freedoms, but it is part of a very small preamble to it. That was not bought by the court, "We don't want to get into any of this stuff about the supremacy of God," and on the rule of law, "Yes, we'll deal with that, but we don't want to talk about the supremacy of God." Even though these words sometimes are in the text of our Constitution, we have difficulty, by force of the system, the way the system works, in making people acknowledge the validity of those concepts.
In terms of the Canada clause and in terms of entrenching economic and social rights, do you have any ideas of how we can go about providing a structure whereby we could see these things adhered to by the system as it presently stands and as we are trying to change that system?
1210
Ms Ruff: I think we need specific laws or directives which spell things out in concrete terms and are enforceable to make those rights really mean anything, spelling out matters specifically, that people are entitled to sufficient income so that they can at least have basic needs met and housing available.
As I was saying, we have this section in the Constitution on equalization and regional disparities and about making progress towards those things, and yet we see that what is happening is the exact opposite. You have to draw the conclusion that having something inside the Constitution is not necessarily going to be very meaningful, particularly when you do not have participatory democracy, when you do not have people involved and aware and when you do not have accountability of the government to say, "This is a new policy we want to adopt and we're going to change that policy, that commitment in the Constitution," and so on and so forth.
You do not really have much of a democracy, in my view, if a right that is so seriously enshrined that it is written as a whole section in the Constitution can be thrown out of the window without anyone even being told what they think about it. I think that kind of behaviour on the part of governments -- also like the example in Saskatchewan, which is not the only place that happens -- where the government handpicks the judge in a complaint against itself, where it handpicks human rights commissions and human rights boards of inquiry, the ombudsman, the privacy commissioner and so forth, is profoundly antidemocratic and destructive of democracy and of the Constitution. The country will pay a price for that in the long term sooner or later.
You have the problems, you have the divisiveness, you have the lag. People have not bought into that because they never had a chance to even talk about it or know about it. I am offended by that and by the hypocrisy of a lot of politicians across the country talking about constitutional rights and how important they are and how what Quebec did was so terrible when, having worked in human rights for the past 20 years or more, where there are serious human rights violations going on by them in their province, they do not want to know, they do not want to talk about it and they do not care. The hypocrisy smells.
Mr Martin: I too, like everybody else who has asked you questions, am impressed with your presentation. For me everything in there is like motherhood. They are things we all certainly give lipservice to at one time or another and hope to see as the ideal we all go for.
I do not know whether you have any answer for my question. I become concerned when we somehow begin to see you and your folks out there separated by this gulf from those of us who have been elected by you to govern, asking for something, and this obvious mistrust and cynicism. Probably a year ago I would have shared that, but now I am a politician and so I struggle with the image a politician has.
My belief is that we politicians work in partnership with those we represent to put in place things that are good for the country. When you bring forth issues so powerfully, like the ones you have here today, that speak to that actually not happening, when things like constitutions, instead of being freeing, uplifting, progressive things are sort of institutions that actually hold in check freedoms and take away from people rather than giving to them, that concerns me.
I share the concern about that whole process of how we involve the constituency out there in a meaningful way. You have talked of an example of yours. How do we, at a national level and a level here, bring folks together in a meaningful way with politicians? Certainly I look at myself. I am trying to be the best I can be. I am trying to be honest and responsive and caring as a politician. I would say I speak for all of us here when I say that and ask you how we might do that more effectively.
Ms Ruff: I want to make it clear that I profoundly believe in politicians and government and the democratic process. What I am saying is that politicians and government can use their powers in different ways. They can use their powers to make democracy less meaningful, to make it just a little cross on a piece of paper and allow money to be used to influence elections by allowing powerful interests to buy huge ads and stuff like that.
You can see very specifically, in practical ways, measures that can be taken that are antidemocratic, that keep the people out and in particular that exclude disadvantaged groups and people who historically have been discriminated against, and you can see measures that do the opposite. As I said, one of the measures for doing the opposite -- I think that is one of the most uplifting things in Canada -- is the model being put forward for the protection of vulnerable adults. I think that is one of the best things that has happened in this country. You see a government saying: "We're not going to close the power in and keep it behind closed doors for us. We know we'll be a healthier society, a more fair and democratic society, if we allow those experts in this, because they're the victims, to choose who's going to protect their rights."
I think having a conference, bringing together different groups in society to give them a chance to speak and listen to them, is really important. What I am saying is that what happened before with the Constitution in 1982 was against the will of the government at the time. They could have had the women there and listened to them. They could have had the disabled people there and listened to them. They could have had the aboriginal people there and listened to them. They did not. Those groups forced themselves into the debate, and the Constitution is a much better document because of it.
I hope I am explaining myself well. I am in no way putting down politicians.
As I said, and I think it shows, the court system is a check and a balance that has to be there, but that is not the ideal way. The ideal way is the political process. They are not mind-boggling ways. These were just a few suggestions. I did not have enormous amounts of time to prepare this, I am sorry, so these were just very practical things that I am aware of that would make huge differences in a more democratic, participatory Canada, which would help avoid conflict and injustice and divisiveness.
I think the kind of consultation that often takes place that I have seen over the past 20 or so years usually is very superficial and you are not allowed in the discussions. With all the groups I have belonged to, we have worked very hard and I think had a lot of very intelligent things to put forward in areas we knew something about, but it virtually never happened. It rarely happened that governments really wanted to sit down and listen to you, rather than go through a superficial process. I think politicians and governments that really do want to listen -- that is all I am saying. I am not trashing politicians at all. I really am not. I profoundly believe in the political process.
The Vice-Chair: Thank you for your faith.
Mr Grandmaître: I think she is the only person who really believes this. You should not be bashing politicians.
Madame Ruff, j'ai ete impressionne par votre presentation, vos idees. Vos commentaires reflètent très bien votre vaste experience de travail avec des groupes desavantages. J'ai ete, je ne veux pas dire «surpris» mais, par contre, je voudrais developper, si vous voulez, ou mieux comprendre vos idees en ce qui concerne l'assemblee constituante.
I think you have pointed out that participation, communication, information, are so important. It is vitally important for us to really understand what goes on in our own country. I think Meech Lake was a perfect example of lack of communication and information, and from the failure of Meech Lake, political groups, such as the Confederation of Regions party and the Reform Party, le Bloc quebecois, tous ces gens-la, were created because of their total dissatisfaction with our process.
I would like you to enlighten me. If we were to have or create a constituent assembly in Ontario or right across Canada, how would you decipher or cipher the proper information to be delivered to Canadians in order that they would make the right decision, and would that decision be made through a referendum after communicating with, informing, all of these people?
1220
Ms Ruff: I think that having some prepared research and information is vital prior to a meeting of a constituent assembly, just the same as yourselves or anyone, if you are going to do a proper job, you have to first have the information and read it and listen to some people with some particular expertise and be well informed as you go into your discussions.
I think there are many areas where people can provide that information, who are not speaking for the government or for any particular group but have credibility, have expertise, and their ideas can be put forward. Obviously Mr Mendes is one example. There are plenty of others.
Our experience with our national meetings of equality-seeking groups is that we consulted them for resource people -- who they would like to prepare papers, who they would like to be on a panel and so forth -- and circulated the ideas among everyone and came up with a certain number of people. There was a lot of interest. The people wanted to hear those people, receive that kind of information that was basic to them.
I think there is no problem with that, and it does not all have to be information that is one view. It is a variety of views, a variety of options. I would imagine that people might like to have some information from Quebec or from aboriginal peoples as well as from English Canada, some experts or some people who have done some work from those backgrounds, and be looking at that variety of information to help them in their discussions.
Mr Grandmaître: You did say from a variety of groups or individuals and this would be communicated back to the total population. With the experience of Meech Lake, or the failed Meech Lake accord, do you think people would still have confidence in provincial governments and the federal government? Do you think people have lost faith totally now? Can we regain this faith?
Ms Ruff: I think one of the good things about the idea of a constituent assembly is to bring some momentum in a positive way and in an informed way so that people can come together with representatives of all the different variety of groups in society and be putting forward ideas that are positive ones as to how we wish to go forward as a country, not to have something imposed on them out of the blue, not just to have a phone line in where you really have not had a chance to become informed before you participate. I think that would create, outside of the constituent assembly, media coverage and interest in the general public. I think it has to be carefully thought through to make it go forward in a positive way.
As I say, when we organized our meetings, we had one speaker in, Catherine McKinnon, from the United States, who has done a lot of work on equality rights, and people were interested in what she had to say. One of the things she said was that there has never been a meeting like this, ever, in the United States.
I think it was very important, and I think it rarely happens, to bring together people representing all the different backgrounds and to give them a chance to work together in an environment that is positive, that gives them some intelligent material to work with and to come forward with proposals and suggestions, an open process that will be educational to the general public at the same time.
Our experience was that it was a very positive experience. There was not a breakdown and fight in rivalry among the different groups. There was not hostility and division between Quebec and the rest of Canada, or aboriginal and non-aboriginal. There was a real wish to listen and learn of the concerns of all of the groups and to try to come forward with ideas that would work well for everybody.
I think we want to start talking as positively as we can. We have so much going for us that is so wonderful as a country. What we are talking about is trying to have a more effective, true, democratic participation and trying to achieve in reality some justice in this country. So it is a positive challenge, I think, to make Canada better, but we do not say that very often. There are a lot of positive feelings in the rest of English Canada towards Quebec as to how wonderful Quebec is. I have lived and worked in Quebec quite a lot and I have worked with francophone groups quite a lot. The plus that it brings to us as a country in terms of their vibrant culture and excitement and liveliness is an extra wealth of strength of knowledge, linguistic and cultural and so forth, in the world. It is a plus.
Aboriginal people, in their knowledge and their wisdom and their role model and their values, again are a plus for us, and I think we need to try and set up environments like this that are going to be very positive in affirming us as a country. We have not had that. We have had very divisive processes used.
The Vice-Chair: Unfortunately we have run over our time by some 10 minutes, but I think most members were interested in what you had to say. You said in the beginning that you did not take a lot of time in preparing your submission, but I think the 20 or 25 years you spent in your background certainly showed in the presentation you gave before this committee today, and for that we thank you.
With that, we will adjourn the committee until 2 o'clock and until then we stand in recess.
The committee recessed at 1226.
AFTERNOON SITTING
The committee resumed at 1406.
The Vice-Chair: The committee will come to order. Again, we would like to welcome viewers who are watching the proceedings of the select committee on Ontario in Confederation. We are coming into the last part of the first week of our hearings, where we are soliciting the views of various constitutional experts, answering specific questions we had given to them before coming, as well as groups coming to make representations to our committee, and also following up on the work we had done on our first part.
COMMITTEE OF PERSONS WITH DISABILITIES ON THE CONSTITUTION
The Vice-Chair: We have today with us -- and I will let them introduce themselves -- the Committee of Persons with Disabilities. For the people who are presenting, I will just introduce myself. My name is Gilles Bisson. I am the Vice-Chairman of the committee. We have on the government side, Mr Drainville, Mr Winninger and Mrs Mathyssen. With the Liberals, we have Mr Grandmaître. With the Conservatives, we have Mr McLean and Mr Villeneuve. If you would introduce yourselves and make your presentation to the committee, you have approximately an hour.
Mr Nikias: My name is Angelo Nikias. I have been asked to chair the Committee of Persons with Disabilities on the Constitution. I would just like to name my colleagues who are here with me today: Dick Santos, Carol McGregor, Hugh Scher, Liz Stimpson, Richard Decter, Sam Savona and David Baker, our legal counsel.
First of all, I would like to thank you for giving us this opportunity to come and discuss with you our concerns in respect to the Constitution. We are really responding to the call that you made earlier this year for public participation. We have a brief which I understand was distributed yesterday to all the members of the committee. If anybody needs a copy of the brief, we have additional copies here. What we would like to do is highlight our brief and then answer questions the members of the committee may have.
Is there a need for copies of the brief?
The Vice-Chair: Yes, the clerk is making copies, which we will be getting shortly, so you can go ahead with your presentation.
Mr Nikias: One of the most important social phenomena of the latter half of our century, I think it can be said, is the emergence of the disability rights movement. The disability rights movement is the main political vehicle by which persons with disabilities are striving to remove the barriers which hamper our participation in all aspects of social activity. The problems we face are problems like difficulties in employment, human rights violations and inadequate education and training. We have tried to address these problems by working together on a cross-disability basis; in other words, persons with various disabilities coming together, identifying the problems and trying to come up with solutions and put them forward.
This method of cross-disability has been effective in all the areas that I have mentioned, but I think it could be most effective in the area of constitutional reform. This is really the reasoning behind our work together and our presentation here today.
It is also important to say that we view our efforts for inclusion in society as part of the broader equality-seeking movement. For that reason we support the protection of persons with disabilities against harmful discrimination on the basis of other grounds which are not listed in section 15 of the Charter of Rights and Freedoms.
We are very well aware of the implications constitutional decisions may have for the lives of persons with disabilities. Therefore, in addition to the comments we are going to make below, we would like to express support for the idea of a constituent assembly as advocated by the Ontario government. The reason for our support is that the convening of an assembly has advantages over other proposed approaches. The main advantage, of course, is that it provides more opportunities for Canadians to participate in the reform of the Canadian Constitution.
Participating in this debate as broadly as we can is very important to us, very important to people with disabilities, because many of the problems we have faced in the past and are facing still today result from the fact that we have been excluded from decisions that affect our lives. So we have come here today with very specific proposals responding to your request for public participation.
Now I will turn it over to my colleagues to discuss the proposals specifically. I will ask Carol McGregor to speak to some of our proposals.
Ms McGregor: We want to discuss with you a little bit about the equality and a bit of background on it. When Pierre Trudeau was pushing for the Charter of Rights and Freedoms so that he could entrench bilingualism, he quickly recognized that the public would support the charter only if there was a strong equality clause. Human rights codes and efforts to stop discrimination had broad public support.
It has been well documented that women have played a prominent role in defining "equality" and were successful in having gender equality given special status under the charter. Persons with disabilities had a basic concern. We had to fight just to be included among the protected groups which were guaranteed equality. Once that battle was won, there was no opportunity to ensure that equality was defined in a way that reflected our own needs.
The specific reform we would like to make under that term, "equality," would be under the rights respecting the inclusion of persons with disabilities. Under section 28.5, we would like to state that:
"(1) The amelioration of the conditions of persons with disabilities can best be achieved by their inclusion in the social, political and economic mainstream through the removal of barriers;
"(2) A barrier review should be conducted every four years by both the federal and the provincial governments for the purpose of designing and introducing legislative packages aimed at achieving the objective of inclusion stated in subsection (1)."
The rationale for this is as follows:
1. The members of the advantaged group should not be able to claim equality protection. Only individuals who are members of disadvantaged groups should be able to assert equality rights under subsection 15(1). This would be ensured by the adoption of the proposal above.
2. This change would adequately deal with claims of reverse discrimination and preclude the negative interpretation of the current subsection 15(2).
3. Section 28.5, above, identifies the equality goal of persons with disabilities as "inclusion in the social, political and economic mainstream through the removal of barriers." This rectifies an omission from the 1982 process where disability organizations were fighting merely to gain recognition for their concerns in the Constitution. People with disabilities are the one group among employment-equity-designated groups -- the others being aboriginal persons, women and members of the visible minorities -- that does not have this type of recognition.
4. Constitutions are more successful at guaranteeing individual rather than collective rights, because collective rights are harder to enforce in the courts. Nevertheless, there are possible strategies capable of confronting major barriers which exclude persons with disabilities. The model of employment equity should be used to impose a charter obligation on governments. All levels of government should be obliged to periodically conduct barrier reviews, develop plans and introduce legislative packages designed to move towards the goal of inclusion. This would not impose an obligation to achieve specific goals, as would subsection 15(1), but would create an opportunity to communicate regularly with government on a cross-disability basis. It would facilitate positive, incremental change over an extended period of time.
The proposed amendment to the Charter of Rights and Freedoms, as well as the enhancement of the equalization payment provisions which will be outlined below, reflect our position that the Constitution should, in addition to protecting individuals against unreasonable or inappropriate state encroachment, provide affirmatively for the amelioration of conditions seen to be the cause of disadvantagement. In relation to persons with disabilities, this principle would require the gradual but definite removal of barriers to our full participation in the mainstream of Canadian society as a whole.
I am going to ask Dick Santos to talk about our problem with section 15.
Mr Santos: I am just going to highlight the problems around subsection 15(2). I will not go into all the citings of cases, etc. David Baker will be speaking about the remedies.
When 15(2) was suggested and adopted, I, as a disabled person, had a great deal of fear about what could come out of the affirmative action idea where the Constitution could be ignored in relation to programs which are supposed to be affirmative action programs to further the integration and further the betterment of disabled people. My immediate and gut-level reactions have come to pass, have been proven correct.
The fact is that in Ontario, for instance, the assistive devices program for disabled people, the blind and visually impaired has an age limit. This has been upheld and the program has been upheld as an affirmative action program. If you keep getting older, you never reach the age that you are eligible, correct? You never double back on yourself.
There is the situation of good intentions, where in a small town in rural Manitoba they might run one bus that is accessible for people in wheelchairs and the court can say they have made the effort, so we should not have a total accessible system.
These are the kinds of problems that arise out of 15(2) and I just give you these couple of examples. I do not want to go on and on, because I think it is much more important to focus on the solutions than the problems, although you have to understand the problems to begin with.
I am going to ask David to take over now.
Mr Baker: The objective underlying subsection 15(2) was that in Canada it was accepted that arguments that something which ameliorated the conditions experienced by disabled or disadvantaged people was not to run afoul of the equality clause or was not to be a case of reverse discrimination and struck down on that basis. Unfortunately, 15(2) was worded in such a broad way that a far greater net was cast than was necessary to deal with the problem of reverse discrimination.
The equality theory has moved from the point of being theory into reality and the Supreme Court of Canada has reached a number of important conclusions about the purposes underlying 15(1). They have said that equality under the Human Rights Code and the Charter are fundamentally the same. They have stated that the relief of disadvantagement experienced by specific groups such as disabled people was the purpose underlying section 15. They have said that only members of disadvantaged groups can expect to rely upon section 15. Finally, they have pointed out that equality includes a duty to remove systemic barriers by accommodating the special circumstances of disadvantaged groups.
1420
The court has done a great job at the Supreme Court level of interpreting 15(1) in a manner which is consistent with this idea that reverse discrimination is not a problem under 15(1).
However, we are concerned because of a number of lower court decisions, as Dick has mentioned, about misconstructions of 15(2), and we are concerned also that the members of the Supreme Court of Canada have undergone a major transition, particularly over the last year or two, which could result in more conservative interpretations of 15(1) and, hence, broader interpretations of 15(2) than we feel are consistent with the intentions expressed back at the time when the charter was being implemented. We feel this is an important time to be bringing forward a revised 15(2) for consideration.
If you look at the top of page 4 of our brief, you will see the wording which is suggested, a simple statement that: "In order to ameliorate the conditions of disadvantaged individuals or groups, the use of subsection (1) is limited to those who are members of disadvantaged groups."
In presenting that, I would remind you, first, that it addresses directly the issue of reverse discrimination which was the purpose underlying 15(2). I would point out also that it is entirely consistent with the trilogy of Supreme Court of Canada decisions under subsection 15(1). Our concern is to reinforce those rulings and prevent the broader interpretations which are being given to 15(2). Rather than go through those again, I leave those if there are questions to be discussed in detail at that time.
The next person to be speaking to you is Hugh Scher, who will be addressing the issue of social programs.
Mr Scher: I would like to begin by addressing the federal structure of our country.
In the preparation of this brief we have consulted widely with the leadership of the disability rights movement in Ontario and across Canada. The consultation has led us to conclude that Canadians with disabilities believe the protection of disability rights in the charter must be strengthened.
Furthermore, we believe that enhanced protection for disability rights is viewed as an integral part of a wider picture, a picture that amounts to nothing less than a vision for this country. This vision would include the fact that Ontarians with disabilities ardently desire a united Canada, one where, while individual liberty and self-actualization are maximized, collective social responsibility is valued and enhanced.
Ontarians with disabilities believe the principle of a united Canada is not incompatible with the desire of certain collectivities to retain their own cultural identity. In this respect, we recognize the right of the aboriginal peoples and the people of Quebec to self-government and self-determination respectively. We think this approach is more consistent with our own position that treating everyone the same, regardless of particular circumstances, is not treating everybody equally, and in fact is often a way of perpetuating conditions of socioeconomic disadvantagement.
Indeed, to paraphrase our former Chief Justice Brian Dickson in the case of Regina v Big M Drugmart: "What may appear good and true to the majority, or to the state acting at their behest, may in fact represent the tyranny of the majority. The interests of true equality may well require differentiation in treatment."
Not only are Ontarians with disabilities in favour of a united country in general; they stand for a strong federal government, a government which is capable of providing effective leadership in matters of national significance. This position, of course, is rooted in our historical experience, which suggests that the federal government has played a positive role with respect to either the initiation or enhancement of services which critically affect our wellbeing as Canadians. In particular, we hold the view that the government federally is the only Canadian institution which can effectively provide persons with disabilities across the country with equal access to the social programs we need.
A little background about the social programs and our concerns and suggestions for improvement in this regard: Across the country, people have made it clear consistently that they feel social programs such as medicare are indeed fundamental to their identity as Canadians. At the same time, some provinces, Quebec in particular, object to the intrusion of the federal government into areas of exclusive provincial jurisdiction. These concerns have become more widespread following the federal government's announcement recently, in the last few budgets, that it will be withdrawing its financial contribution towards the cost of these programs, while at the same time maintaining its intention to impose national standards in any event.
It is important to recognize as well certain facts. Canada's spending on health care services, primarily doctors and hospitals, is among the highest in the industrialized world. However, our spending on social services, such as preventive health programs, welfare, housing, etc, is among the lowest. The net result is that Canada's overall social spending is about average for an industrialized country, lagging far behind such countries in Europe as Germany and Sweden and just marginally better than the United States.
We believe the government could be an important ally for Canadians with disabilities. A Constitution which protects disabled people from government only does half the job. Canadians with disabilities are seeking constitutional recognition of a right to have social programs which are comparable from coast to coast. We believe the only way this can be achieved is through equalization payments. I will now address the question of equalization payments and regional disparities.
Section 36 of the Constitution Act deals with equalization and regional disparities:
"(1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to:
"(a) promoting equal opportunities for the wellbeing of Canadians;
"(b) furthering economic development to reduce disparity in opportunities; and
"(c) providing essential public services of reasonable quality to all Canadians."
"(2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that the provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation."
These are indeed lofty phrases, and the problem we face to date is that to a large degree they have not been put into action. Indeed, during the current federal government's term in office, many of the payments towards these services have been cut substantially.
If there are to be truly national social programs, as ardently desired by the majority of Canadians, the fundamental issue is the provinces' financial ability to pay for them. National standards, unaccompanied by the financial means to meet them, are merely hollow promises which offer people with disabilities, particularly those in have-not provinces, no realistic hope.
In light of this, we would propose the following reform. We believe this is consistent with the Group of 22 report and its recommendations, which you will find in the supplementary material, as well as with Quebec's position in the Allaire report, which is also in the supplementary materials.
The wording of the reform that we would urge the government to support calls for the enforcement of section 36 and reads as follows:
"(3) Any person adversely affected by the failure of a provincial government to provide a comparable level of social program, or of the federal government to make equalization payments which ensure the province can provide the program at a comparable level of taxation, may make application to a court of competent jurisdiction to obtain such remedy as the court considers just and appropriate in the circumstances."
The reasoning for this is evident, but I will outline again some of the major concerns we have which led us to this means of reform. First, by making section 36 enforceable and by keeping it where it is in section 36 under the Equalization and Regional Disparities section, as opposed to in the Charter of Rights itself, we believe it will not be subject to the "notwithstanding" clause in the charter in section 33 or to the "reasonable limits" provision in section 1 of the Constitution. Indeed, it is also consistent with the statutory scheme of the Constitution Act, 1982, and section 36 in particular.
The focus on social programs moves away from the idea of public services in general and reflects the priority attached to these programs by Canadian people. The proposal does nothing to interfere with the exercise of the federal spending power or with the exercise of exclusive provincial jurisdiction. It does give priority to equalization and thus enables provinces to exercise their jurisdiction in an equitable way. The government federally would still be free to impose national standards through cost-sharing agreements with the provinces.
We believe and hope this proposal will be satisfactory to Quebec, which in the Allaire report recognized equalization as a legitimate role for the federal government. Indeed, the need for national standards may be reduced because the standards of comparability will be achieved through transfers from have to have-not provinces.
In essence, the proposal represents a new bedrock of equalization which the federal government could not unilaterally discontinue. This is the spirit which we believe will truly bind us together as Canadians.
1430
Mr Nikias: The involvement of persons with disabilities in the constitutional reform process we think merely complements the barrier-removal initiatives at the federal and provincial levels, which are designed to advance our goal of barrier removal. In pursuit of our constitutional objectives, we seek the support of all members of the Ontario Legislature. Successive Ontario governments have shown leadership in pursuing social justice and national unity. Therefore, we trust that the current government will champion constitutional proposals which further safeguard or enhance the rights of persons with disabilities. To this end, we request that the select committee on Confederation join with us in requesting that the Premier place these proposals on the constitutional agenda during the upcoming premiers' meeting in British Columbia.
Mr Drainville: Thank you very much, Angelo. I met you recently when we were discussing some issues around human rights, and I am glad to see you here before the committee again. I would like to ask for a background viewpoint on the proposed reform, subsection 36(3). The bill the House of Commons was dealing with recently, C-69, has to do with the Canada assistance plan. In the context of what you are presenting before this select committee, how would you view that particular legislation?
Mr Baker: What we are trying to say is that there needs to be a new approach to social programs which does not interfere with what we have now. Certainly C-69 interferes with the underlying principles of the Canada assistance plan as we have known them for decades now, and it obviously had a major impact on both the current government and the previous government in terms of their planning in the area of social assistance.
The point we would make -- and we are making this as representatives of disabled people across the country; Angelo will tell you this brief has been endorsed by the Coalition of Provincial Organizations of the Handicapped nationally -- is that the Canada assistance plan was based upon the principle of one dollar from the province matched by a dollar from the federal government. There were obvious advantages to that arrangement to have provinces. What we are saying is that we need to confront the issue of equalization as the fundamental issue. We are not disputing nor would we seek to change the ability of the federal government to enter into those kinds of cost-sharing arrangements with the provinces. Indeed, we would encourage that, and we would encourage the federal government to continue to show the leadership in initiating new programs such as day care and others which it has the capacity to do under the current constitutional arrangement.
What we point out, however, is that under the current Canada assistance plan and its companion document, the Vocational Rehabilitation of Disabled Persons Act, provinces like Prince Edward Island have virtually no programs at all for disabled people. We find that having disabled people in PEI living in Third World conditions while we in Ontario, at least up to this point in time, have been fortunate enough to have somewhat better programs means that we have not confronted the fundamental issue yet.
That is why we are saying we need to confront equalization. Our belief is that it will make Quebec happier, because it will mean there is not such a great need for federal intrusion into provincial areas of jurisdiction, because we will be confronting this issue of equalization without the federal government dictating to any one province what it should be doing. That is our hope.
This is something we should have done and we have not done. There have been equalization payments over the years, but it is a relatively small proportion of the transfers between the federal and the provincial governments. We would like to see that substantially increased so as to recognize the regional disparities that exist within the country. It may be that Ontario will be a have-not province some day. We all hope not, but we have to be thinking that way too.
Mr Nikias: I think a couple of my colleagues want to add something.
Mr Decter: I am Richard Decter from Persons United for Self-Help in Ontario. I just wanted to add something. Under the current arrangements, despite the wealth of Ontario, 60% to 80% of the people in Ontario with disabilities are unemployed, 50% of adults have incomes of less than $10,000 a year, and 225,000 people live in institutions of various kinds, and I am not talking about prisons. If that is the situation in Ontario, I think you can imagine what the situation is like in a province like Newfoundland or in the other poorer provinces. That is why we feel both the equality provisions and the equalization provisions are important.
Mr Scher: I think it is also important, in light of the question you asked about Bill C-69, to look at Bill C-28, which the federal government has brought forward in the last session. I believe that is a significant detraction and regression in terms of the federal government's commitment to living up to its end of the bargain and paying for social programs. I think it encapsulates the idea we are talking about: that if we leave the jurisdiction with the provinces -- as it is, these social programs are exclusively provincial jurisdiction -- and simply allow the federal government in this way to ensure its payment and commitment to them through equalization, we will not run into the sorts of problems that are being discussed right now with regard to Bill C-28, whereby money from social programs will be dumped into the health care field, thus detracting from those other social programs. There is no question of the importance of health care, but we cannot at the same time take away from the rest of our social network in order to maintain the health care payments we are paying across the country as well.
Mr Drainville: I would like to ask a brief question. In terms of allowing an individual to take the provincial or federal government to court, what section was that again?
Mr Baker: Subsection 36(3), at the top of page 8.
Mr Drainville: In terms of taking the governments to court, I am intrigued about this because certainly one of the problems that has been stated here before the committee and also in terms of other groups who have been discussing equality rights is the reality that we have many provisions presently in the Charter of Rights and Freedoms that indicate there are rights for people, yet when we try to access those rights we are having difficulty in the courts doing that. What I see you doing here is trying to provide a mechanism whereby, when there is an act of a government, provincial or federal, which detracts from the support and the access that disabled people need, there will be recourse to use the courts to try to redress that. Could you talk a little bit about how you came at that issue and how you formulated the particular section?
Mr Scher: I think you have touched on the heart of the issue. There are a lot of academics out there who are debating the question of whether section 36 is enforceable. I have spoken with many of them who have written papers on the subject, but the practical reality is that it has not been used in the courts.
If you look at the first drafts of section 36, it was originally enforceable. In the first draft of section 36 that came out there was an enforcement clause within it. It was removed in the later drafting of the section, before it was implemented. I do believe, certainly theoretically, that there is a tremendous potential to implement section 36 in the courts. What this will do is clarify that intention and indeed provide that mechanism explicitly rather than having it as part of a theoretical debate.
1440
Mr Winninger: My question for Mr Scher also deals with your proposal to amend section 36. I find the recourse to the courts a very attractive feature. I do express a concern, however, given the present makeup of our courts of Canada and the lack of people with disabilities on the bench. I think you might agree that a lot of work needs to be done to reform the method by which we are selecting our judiciary, to ensure that it does not become a hollow right: that when you exercise your recourse to the courts you are exercising your recourse to a court that is representative of society at large and certainly the disabled sector.
Mr Nikias: If I understand your point to be that we need more persons with disabilities on the bench, I absolutely agree with you and I urge you to move forward.
Mr Winninger: The other observation I would make is that you may be in a position where you are asking the court to make decisions that are normally made and should be made by the governments that have failed to make them. Perhaps that is why there is some doubt as to the enforceability of that section. Too often, in my experience, the courts have refrained from exercising judicial power because they feel it is a matter for government.
Mr Scher: I would agree with that. Of course, the political questions doctrine in the United States has led the courts in many instances to stray away from hot political items.
The shared-cost mechanisms are still present. There is nothing to prevent government from taking the steps that are required in order to ensure comparability of services across the country. What we are saying is that in the absence of that, we are going to provide another mechanism whereby individuals can bring their concerns to the court for redress. We are not taking away any of the authority of government to continue negotiating shared-cost agreements and agreements that will ensure comparability of services across the country. In fact, we are encouraging that and we are obviously hoping it will be the case.
Mr Baker: I think the point of subsection 36(3) is that it is enforceable and does not leave the degree of judicial discretion that you might be concerned about. The issue of comparability of levels of social programs is essentially quantifiable, and that is done now both within the country as between provinces and, as we mentioned in our brief, internationally by the OECD, which is comparing levels of social programs between countries, which is a much more difficult exercise than would be required here.
In terms of comparable levels of taxation, it is simply a mathematical formulation to take the cost of the social program, the tax base in the province and the level of taxation in the province to be able to assess what the cost would be. For example, we know that in Ontario the cost of medicare is about 7% of the gross national product and in Newfoundland it is 13%. That is the kind of thing that concerns us. In Newfoundland the net effect is that there are no social programs for disabled people because everything has gone into medicare. That is the kind of concern we have here.
We feel this is something the courts could not fail to enforce. That was a double negative. The courts would enforce it. It is something that can be calculated and presented and would not require a great deal of resources on the part of the disabled community, for example, to have this kind of issue brought forward before a court. If a province fell below the level of comparable standards, then it would be enforceable against the province. If the federal government failed to provide the equalization payment due to that province, again, that would be readily identifiable.
Mr Winninger: You have provided a great deal of reassurance, but let us not forget the impact of section 1, which may water down that right where it is considered reasonable to do so politically.
Mr Nikias: Our goal generally is not to minimize the role of democratic politics. We still view the political decision-making process as the main one, but what we are proposing is a defence, in a way, against actions which minorities have no other way of defending themselves against. This is really the essence of what we are trying to do.
Mr Scher: I would add to that, if you look at the rationale's point 1 on page 8, the placement of subsection 36(3) outside the Charter of Rights and Freedoms removes it from the effect of section 1 of the charter, so there would not be any cause for concern in that regard.
Mr Winninger: I see what you are getting at. Thank you.
Mrs Y. O'Neill: This is an excellent brief, and challenging certainly. I feel you have tried to grapple with the important issues, the distinctions and the possibilities.
I wanted to be as honest with you as I can about our committee and what we are mandated to do. To be honest with you, I do not think we as a committee can influence the Premier when he goes to meet in British Columbia. I am sure he keeps very close touch with what we are doing, but our final report is to come in November. When he goes there, which I think is at the end of this month, we will still be in our hearings. So there will be no formal recommendations other than our interim report, but I am sure that briefs such as yours which are very directed and focused will be within his hand when he goes.
But I do not want you to think that because you do not see a communique to this effect we are not going to attend to your concerns. It is a legislative committee you are talking to, and our recommendations, if they be such, will be after these hearings and after our conference in October. I wanted you to be clear about what our possibilities are, and our Chairman today may want to say more about that.
That having been said, I wanted you to please help us a little more. When you introduced your brief you talked about the idea of a constituent assembly. This is definitely something we have to grapple with. It has been said to us as early as our first couple of days of hearings last February and it has certainly been said to us more often this week. We have talked about it among ourselves, although certainly not in any focused manner of forming a recommendation on it.
What I would like you to do, if you could, is grapple with the issues that have to be grappled with when you talk about a constituent assembly. How do you choose delegates? How do you develop an agenda? What kind of voting rights are there, and are there any veto powers? Basically, to this point, in this country, constituent assemblies have been the legislatures of the provinces and the Legislature of the House of Commons.
This whole new concept is developing out there of the constituent assembly, and as it gets closer and closer to the centre of decision-making, it becomes harder and harder to pull together. As we developed our conference agenda, which has some of the characteristics, we are finding that it is very challenging for us to be fair, to be representative, to mirror Ontario.
I really want those people who are outside this committee, such as yourself, who have looked at this issue, maybe even experienced something like it, to try and help us understand how you feel we could best think about this in a way that would be positive.
Mr Baker: In terms of mapping out in precise detail what a constituent assembly might consist of, I think that is beyond what we have achieved to this point in time. You have been candid with us, and I think we would want to be candid with you about that.
Our fundamental concern here comes from the perception that was popularized with the reference, in the context of Meech Lake, to the 11 white, able-bodied males going into a room and coming out with the solution to everything. The view is that the democratic process is important and we would like to see and we believe that a constituent assembly should be viewed from the perspective of reinforcing the democratic process.
1450
However, one clear reality of the democratic process, and the reason why there is a section 15 in the Charter of Rights and Freedoms, is that a majoritarian process does tend to leave out important minorities within the community. So the view was that a constituent assembly provided a mechanism to ensure representation of those minority interests, including the interests of disabled people.
To the extent that is helpful, and I do not think it is very, to be honest, that is where we are coming from. We are saying that historically, disability issues have been broken up disability by disability and so the political clout the disabled people have had has been extremely minimal because everything has been done on a disability-by-disability basis. At this point in time, the structures within the disabled community are such that people are operating on a cross-disability basis and proposals such as these can be brought forward. There are mechanisms for people like Mr Nikias here to come in at the provincial and at the national level as well and truly say he represents disabled people across this province here today and next week he will be speaking on behalf of disabled people across the country. That kind of representation is felt to be important in this process.
The other point we would make is that we have not gotten very far with the traditional structures and that is why people are reaching for new solutions. The tradeoffs, the scenarios, the law professors, the constitutional advisers, the Premier's staff and so on have created certain logjams, and everybody knows where everyone else is coming from and everybody has issued their threats and everybody knows where everybody else is going. The feeling is that through this kind of a process some new agenda items might come forward. Certainly our intention with this brief is to bring these to you, and we hope that, whatever mechanism is ultimately selected, some new proposals will be brought forward which might unjam the logjam.
I think that is where we are coming from, the desire for a voice and to be represented at the table and a desire to see new solutions brought forward which are an attempt to respect and understand where the province is and the federal government and where the traditional advisers they have been relying upon have been coming from, but to bring some new ideas that might help bring the solutions.
Mrs Y. O'Neill: Certainly ARCH's publication indicates the cross-disability communication. I think it is extremely helpful. PUSH is certainly making its points, I think, very clearly, and today is a perfect example.
I think in trying to answer the question you realize how difficult it is going to be for us to break the logjams. I do not think we should throw up our hands and say nothing can be done. I think those of us who have the responsibility at the moment have to find ways to do that, and we will certainly continue to struggle with the issue, I am sure.
If you do, in the course of the summer, and certainly before our final report, come with more refined ideas of how you feel a constituent assembly can be fair, can be meaningful, can be a true reflection, because I am sure you are talking about this on a regular basis, I would really hope you would pass that along to us.
Mr Nikias: We will do that.
Mrs Y. O'Neill: We certainly like to continue to receive correspondence from those who have made presentations to us, because we think sometimes that we really only begin to think when we start to communicate with each other. You will no doubt continue to think and we would like to be kept up to date.
Ms McGregor: I am sure when it comes down to getting names that the equality-seeking groups that are interested in this particular issue will be quite capable of supplying names to whoever is preparing the assembly. We know who are our experts in the different areas. We would feel certainly much more confident in the whole process if our interests are being represented by a person whom we trusted, and we would have direct knowledge. This is something that indeed we would talk about over the summer, perhaps in a great more detail, but we certainly would like to have representation at any discussions on this issue.
Mrs Y. O'Neill: I hope somehow you will be at the conference. I do not think the problem is developing a list of people who are knowledgeable or experienced. The difficulty, as I see it, very simplistically, is those who do not get invited, all those people who want to be part of this, who have spent a long time on it.
Ms McGregor: Persons with disabilities have tended to be excluded from most things. We intend not to be excluded from this process.
Mrs Y. O'Neill: That certainly is the bottom line.
The Vice-Chair: One of the things you do not get a chance to do very often as Chair is to ask questions, but there is something I just wanted to mention. You talked about process, and I think what your group is saying to us is not different from what any other group is saying to any politician, probably across this country. The feeling is that the process in the past has not worked. I guess to a great extent it has not. I always come back and say, "One thing is that we must not forget sometimes that the process did work somewhat." I do not mean that to console anybody, but we have accomplished something in the 120-odd years that we have been here.
But I think that what people are saying now, if I understand what you are saying, is: "We need to have input because disabled people have not been listened to. Neither have native people. Various culture groups have not been listened to."
What I would want to ask as a question is, how are you able to build a consensus among all the varying people within this country, because really that is the crux of this issue: How do you build a consensus among what is happening inside Quebec, what is happening inside English Canada and within the various communities? What you people have done within PUSH, I think, to a certain extent, is to bring various parts of your community together. Is there a lesson we can learn from what PUSH has done that we can take on?
Mr Nikias: The traditional answer would be a lot of give and take, but perhaps you are looking for more than that.
The Vice-Chair: The problem is that a lot of people do not want to give.
Mr Baker: One advantage to a constituent assembly approach is that it cuts across the traditional, federal government versus the provinces and the regions fighting among themselves. Without going further than I am able to at this point in time, I would say that efforts are being made to discuss these issues with disabled people in Quebec. The Coalition of Provincial Organizations of the Handicapped has spoken. I know the National Action Committee on the Status of Women, for example, is making supreme efforts to maintain its communication with women in Quebec and involvement of representation from Quebec.
Carol McGregor spoke of the federal proposal that there be a comprehensive bill paralleling the Americans with Disabilities Act, a barrier-removal piece of legislation similar to that which was proposed I think first by the current Premier of Ontario during the last election campaign. That has a high degree of support within Quebec, so there is support within Quebec for that kind of a federal initiative within the disabled community. Whether that would translate into leadership in the umbrella organization within Quebec to become involved in support for these kinds of constitutional proposals, thereby leading to a validation of the federal process itself, is something that is as sensitive for us as it is for any other serious organizations and structures within the country. It is something we would not want to prejudge or to say we have something we have not got.
The dialogue, the discussion, is ongoing within COPOH, within the Canadian Disability Rights Council. Angelo is chairing the human rights committee for COPOH and is one of the three designates, along with the representative from Quebec, on the Canadian Disability Rights Council committee struck to work on the Constitution. Those processes are ongoing and I think the constituent assembly holds out hope in that kind of a process, because it means that these kinds of national structures, which are non-governmental structures but which do exist and which are important, can contribute to the process of reconciliation which I think people must have coming out of that kind of a constituent assembly for it to be successful.
Mr Scher: I would like to add perhaps a couple of points to your original statement. Basically, the constitutional history of Canada is really what you were talking about in terms of how the process has been successful. I think it is a little bit early maybe to make that bold a statement. We are only 124 years as a country and the Constitution is as of 1982. The only real effort that was attempted to be put into legislative force was Meech Lake and that of course failed. There were prior conferences held to deal with the aboriginal peoples and their concerns, but the whole idea of constitutional reform in Canada is very new and it is something we are all looking at. It is somewhat of an academic question as well as a practical one. I think it is important to keep that historical framework in mind, in the sense that this is all very new. What we are after, at this point, as an equality-seeking group, is to ensure that the rights of minority groups such as ourselves are heard. I think that is what a constituent assembly and any process that would eventually result would entail.
1500
The Vice-Chair: What I was alluding to is that one of the things that strikes me sometimes, when you hear people speak on the issue, is that maybe sometimes we tend to mix constitutional issues with service issues and seem to forget we have come a long way within this country to address some of our social problems. That is not to say that we have not got a long way to go, but we need to recognize where we came from so that we can move on from there.
It is really not the job of the Chair to say those things and to get into the debate, but there is something I want to find out. Excuse me, you were going to say something.
Ms McGregor: I was going to say one thing actually. You are referring to how far we have come with social programs. We would like to ensure that we maintain a level of social programs. We have disabled people now who are not getting attendant care until 5 o'clock in the afternoon and not getting breakfast. There is an obvious decline in our social programs. Transportation is being cut back for disabled people. If this is happening in Ontario, it is certainly going further elsewhere in the country. We cannot have our social programs eroded to the extent that they are right now.
The Vice-Chair: I really wonder sometimes whether people know why those programs are there. People sometimes get the impression they do a lot more than they actually do and wonder about cost.
Ms McGregor: The cost is certainly affecting our most disadvantaged group, the group that is unable to speak on behalf of itself the most. When you cannot get a person out of his or her home because you cannot get an attendant or transportation, then how is that person's voice being heard?
The Vice-Chair: Exactly.
Mr Nikias: We have thought very carefully about this and have tried to strike a balance between what you put in a Constitution, what principles you entrench in it and what you leave out. We are confident that what we are proposing is appropriate for the Constitution and we are aware of the fact that you cannot be very specific. On the other hand, there are certain fundamental principles we espouse in Canada, and I think we have spelled them out in this brief, which could be put in the Constitution appropriately.
The Vice-Chair: With that, I do not think there are any other other questions. Perhaps there is a closing comment on behalf of the group.
Mr Baker: Much of the discussion is focused on our proposal in relation to social programs but, if I might just draw your attention back to our proposal at page 4 of the brief, it does seem to us that other groups in similar situations to the disabled community do have their goals recognized within the Constitution. I am speaking of women, who did extremely well -- we congratulate them in their efforts in the first go-round; and the multicultural community reflected in section 27. Aboriginal people are far from satisfied with the recognition they have received. That is certainly on the agenda, but they have also been recognized to a certain extent within the Constitution. That just has not happened for disabled people.
We do not see a cost in financial terms to recognition of what the consensus goal is among disabled people, that is, the goal of inclusion, which is not to preclude arguments that inclusion is not always as simple as pushing a deaf person into a classroom. If your colleague Mr Malkowski were here, I am sure we would have entered into that discussion with him.
The second point, following up on that, is the proposal of a barrier review every four years. Again, this is not to prejudge what, if anything, would come out of that barrier review, so there is no dollar sign attached to this. It is a process we are asking for to please think every four years about the ways in which government holds back or is responsible for barriers that confront disabled people. We know there are efforts being made, for example, to make courthouses accessible, and other things which are steps forward. That is great, but there has not been a comprehensive attempt made to document where the barriers exist.
The federal government is committed to this process at least once, culminating in April of next year. We hope the provincial government will commit itself to a similar process, but there is no reason why it has to be done once. We know everything cannot be achieved in one go-round, so we see this as a responsible, cost-effective, sensible way of confronting these issues and strongly urge your support for this kind of thing. If this is going to go on the agenda, we see it coming from Ontario and really hope all parties would be supportive of that kind of approach.
Mr Nikias: I would like to thank you for this opportunity. As we develop our position, I can assure you that we will be corresponding with the committee to make sure you understand what our position is.
The Vice-Chair: We invite you to do so. With that ends our first week of hearings. The committee will be coming back together at 2 o'clock next Tuesday. I ask committee members to hold off for a couple of minutes before leaving. There are a couple of pieces of unfinished business that we need to deal with over the weekend. With that, the committee stands adjourned until Tuesday afternoon at 2 o'clock.
The committee adjourned at 1506.