Thursday 8 August 1991

Roberta L. Jamieson

Black Business and Professional Association

Robert Martin



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)


Drainville, Dennis (Victoria-Haliburton NDP) for Mr Silipo

Marland, Margaret (Mississauga South PC) for Mr Eves

Wessenger, Paul (Simcoe Centre NDP) for Ms Harrington

White, Drummond (Durham Centre NDP) for Ms Gigantes

Clerk: Brown, Harold


Kaye, Philip, Research Officer, Legislative Research Service

Wakefield, Ted, Research Officer, Legislative Research Service

The committee met at 1009 in room 151.

The Vice-Chair: The committee will come to order. We find ourselves today in the last day of this week's hearing with regard to the work that the select committee on Ontario in Confederation is doing.


The Vice-Chair: We have with us this morning Roberta Jamieson, who is with the Ombudsman and has been there for a little while. She is going to present to us this morning with regard to some matters having to do with the Constitution. I am not exactly sure what topics you are going to speak on, so if you can, let the committee know ahead of time. We turn it over to you.

Ms Jamieson: Good morning. Bonjour. Sago, in my language. I am delighted to be here. I want to thank you very much for the invitation to appear before you and for your generosity in thinking that I might be of some assistance in your deliberations.

I found myself seeking to balance on a tightrope preparing to come here today, for the mandate which you, the Legislature, has given me requires me to maintain a certain neutrality. At the same time, I have had experiences leading to a perspective I believe could be useful to you and which I would like to share.

I believe we are of one mind in our desire to improve the quality of democracy enjoyed by the people of Ontario as part of a productive Canadian union. Our struggle to reach this objective is tempered by the fact that we have both the privilege and the burden of living in times when we are required not only to confront monumental challenges individually and collectively, but to deal with the reality that other challenges gnaw from within at our consciences and trouble our souls.

There are those who are convinced that all will be well in the land if the Constitution of Canada is changed. I sense from the list of questions the hope that if we could just plug in the right answers, Canada would be whole and happy, that all we require is some fine-tuning of the status quo. To adopt this view, however, requires us to ignore the tremendous stresses and changes in our generation, which continue to reshape our social, cultural, economic and political landscape.

Circumstances demand that Canada consider basic changes in the way it conceives of itself. Modern communication has transported us unwillingly from simpler, more tranquil places of the mind to a global village in which we are ill prepared to live. New perceptions and definition of rights, a breakdown in traditional structures, a failure of institutions to meet their raison d'être, the realization that many of our institutions do not reflect the face of Canada, increased mobility and immigration, these have all resulted in dynamic tensions which require our attention.

There is another reason why I find it difficult to respond to the list of questions supplied by the committee, for to deal with the details without having shaped the vision will leave us where we are now, faced with ironclad parameters which do not leave us much room to adjust and evolve and mature. It would be pre-emptory, even exclusionary, to deal with detailed questions until we have a shared national vision for the future which dynamically opens up space as space is needed in the years to come, space for all Canadians individually and in collectives to achieve their personal hopes and dreams.

I firmly believe that such questions can only be answered after we have established a framework for the future which is able to accommodate fundamental changes, which we might now be able to anticipate only vaguely, if at all. Only if we have an expanding, flexible framework can we escape from the current purgatory of nation-building through crisis management. True, a revised Constitution would provide a new basis for legal challenges to the existing order, but as anyone involved with aboriginal rights will tell you, mention in the Constitution is just a starting point in a long, winding trail of struggle for recognition of rights.

This kind of change might be all that can be hoped for at this time, but how much nicer it would be if Canada were able to adopt a Constitution which represented broad consensus on the principles, values, relationships and institutions which Canadians of today wish to have as the foundation for their governments and laws. Certainly imposed solutions cannot be expected to result in harmony and co-operation.

Unfortunately, we have some built-in obstacles which mitigate against Canada achieving consensus. One obstacle is the failure of Canada to face up to a transition dictated by current reality, the transition of a country which for decades considered itself, as a God-given kingdom, to be peopled from sea to sea by one people, one race, one culture and one religion, to a nation which is multicultural, multilinguistic, multiracial and with a population holding to a multiplicity of religious practices.

Another obstacle which mitigates against consensus is the general absence of predisposing attitudes to arrive at decisions by consensus-building and by achieving accommodation. We still tend to give in to an institutional urge to fight for victory rather than to achieve reconciliation.

It is easy to see, then, in today's overwhelming and critical circumstances, in the vacuum cut somewhere between fiction and fact, that so many people are resorting to other harder attitudes which make them feel more comfortable and secure, but which result all too often in polarization and conflict and push those in less comfortable circumstances to further extremes.

Most debates about the Constitution to date have been characterized by advocacy of special interests. There has been little room offered for compromise, little comfort for those who have conflicting special interests which are held equally dear. There are undoubtedly many reasons why Canadians, whose history is filled with necessary compromise, seem to have become arbitrary and unilateral in their points of view. It seems to be the last stand of the mainstream, an effort to sustain a dream, a fantasy of a British North America which has been overtaken by new realities and new values.

I believe we have arrived at this political high noon because those who think of themselves as mainstream Canadians are unsure of the cultural platform on which their lives are based. As a result, Canada has been unable to receive full benefit of the potential offered by the others, by women, by those who speak another language, by aboriginal peoples, by non-European immigrants and by those who have achieved economic success. How can we embrace the wisdom and gifts of other cultures if we are jealously protecting our privileges and our myths of superiority from examination under the sun's light?

Can we experience the synergy which can come from those who are different if we are not receptive to living in a multidimensional world? Can we benefit from the rich perspectives developed over the ages by peoples with different experiences if these are suppressed in favour of an established order of one-dimensional thought? Those who feel threatened by the realities of the very world in which they live and by the thought that their power is slipping away seem to anchor themselves with polarities which accept no compromise. Everything is good or bad, black or white and reduced to the bottom line of the ledger. "My way" becomes the right way and the only way for those who exercise power.

Consensual decision-making and compromise are lost in a blast of might makes right. Perversely, invisible inherited and invented prejudices lead to prisons of conformity and punishment even for those who do not live within their walls. The truth is of course that no one people has a monopoly on the right answer. No one owns the road map showing the correct route to the future.


There is one simple answer: We must overcome narrow automatic reflex responses so that social synergy can do its work in Canada.

We have to do it personally and nationally, for if we cannot open ourselves up to new possibilities, new perspectives, new configurations, new sharing of power, we cannot expect to survive. We will have little to offer to others and we will be unable to receive from others among us the gifts they have to offer us.

We have in this country a significant and culturally rich aboriginal population who, despite all common sense and logic, are not considered among the country's founding peoples nor are welcomed as part of the body politic. We have a vibrant network of multicultural communities with roots all over the world and yet we seem to be mired in sterile debate about the respective founding rights of two diminishing groups.

It is my hope that your recommendations will be forged to include the catalytic solvent which will unstick Canadians from the glue of narrow vested interests and one-dimensional mindsets.

With the help of many, I believe we can demonstrate convincingly that the accommodation of others should not be a strategy designed to coddle people of non-dominant cultures as though they had some kind of temporary affliction, or to make them comfortable until they can be absorbed into a dominant and domineering anticulture.

Certainly we can reject any approach to multiculturalism which treats the culture of others as the product of a quaint past which can be frozen in time and set out on exhibition for the entertainment of others.

Another matter: Could we not have a Constitution which would encourage all residents of this land to give their first allegiance and love to the part of Canada which sustains their lives? This is what the first nations have always been instructed to do.

The failure of Canadians to put their roots in deep in their "home and native land" has left tragic consequences all around us, for still today, some 500 years and 25 generations after the fact, we continue to find the continent governed by displaced Europeans solidly tied to European culture and language, people who remain European to their core, destined to man a hostile and forlorn colonial outpost for a mother country which has long since faded away.

It seems to me that when the settlers finally feel secure and unthreatened by people different than themselves they will no longer find it necessary to circle the wagons around their own cultures and they will open up space for others so that social synergy can happen.

When we understand our lives are sustained by the gifts of the natural world in a part of Canada and not by strings to Europe, we will not be fouling our nests and then distancing ourselves from responsibility by calling our own carelessness "environmental problems."

We will not feel the need to insist that everyone behave as we do and in fact we would respect and appreciate those who could contribute their diverse talents and points of view. We would understand why a former ambassador to Canada from Mexico would say that Canada was the solution looking for a problem. We would realize why international polls record Canada as the nation of choice.

Only a visionary Constitution can offer the scope to include these essential elements, and if the vision is to be achieved, all Canadians must be confident that the Constitution and the instruments which give effect to its meaning reflect Canada in all its dimensions. There must be confidence that there is space, sensitivity and acceptance in our Constitution for everyone: the disabled community, the original peoples, long-time and new Canadians, men and women, young and old. The Constitution is not a document which belongs to the privileged; it belongs equally to single parents, pensioners, the unemployed, those who receive social assistance.

The demand for greater involvement which seems to swell across this land and Canada's willingness to accommodate it in the creation of the country's most fundamental document is surely the essence of democracy. I cannot think of a more healthy, positive or natural development. For Canada's shape, present and future, is after all the responsibility of all Canadians. This responsibility is the heart and soul of what it means for us to accept our ultimate responsibility as custodians of our children's future in this land. Now this realization may be difficult for those who have become comfortable making decisions on behalf of everyone else, but successful and graceful accommodation requires that we be able to reach decisions without resorting to unilateral exercise of power.

We have traditionally employed a variety of ways to arrive at solutions through accommodation. Those techniques range from town hall meetings to the use of neutral facilitators mandated to come up with a range of options which might be mutually acceptable. The essence of those old traditional approaches has relevance today as we recognize both at home and abroad that reliance solely on adversarial law and politics is counterproductive to our own wellbeing. We are starting to recognize that the global village is too small and we people are too interdependent to retain any fantasy that a solution which produces a winner and a loser will remain in place very long. We know that our very survival rests on our ability to find win-win solutions at every opportunity.

Without political will, of course, and the willingness to take political risks, none of this is possible. And regardless of all wise recommendations which might be implemented, the debate and the court cases will drag on. But we are capable of creating a new Canada which is not composed of a majority and minorities, of a "we" separated from "the others", a country in which each person would be perceived as part of a greater whole which is capable of appreciating and respecting difference.

Perhaps in colonial days in slower-moving times it was not possible for either Westminster or Canadians to think of any alternative other than freezing Canada in 19th century British tradition. None the less we can learn from that error and ensure that we create space this time around, not limit it.

Part of your task, our task, is to develop persuasive arguments why neither maintaining the status quo, nor simply fine-tuning it, is in our best interests. With broad support from every sector, perhaps government will be able to find the necessary resolve to do what must be done so Canada can be at peace with itself, so that we can open up space for all peoples so that they can participate in and contribute to Canadian life, space so everyone can exercise their just rights and realize their full potential.

I hope you will be able to recommend this kind of living process which allows for broad participation and the development of consensus and mutual accommodation. Canada cannot afford to do anything less. We cannot keep outmoded one-dimensional views and instruments which do not serve us well as we try and deal with the 21st century and beyond.

I have no doubt that Canadians, that Canada, can meet this challenge. Indeed I believe that Canada can and will lead the world as a model nation, showing the way to tomorrow's children and tomorrow's nations.

I am sorry for those of you I may have disappointed, who expected me to offer specific recommendations 1, 2 and 3. I have instead offered a template of principles and shared a vision of what might be and I hope it will serve you well as you deal with specific questions.

As I said earlier, we cannot expect a Constitution to be the magic potion which creates from pen and paper that which can only be created by daily goodwill and highly principled human relations.

I would like to leave you with this thought: It has been said that a nation's greatness can be measured by how it treats those who are a minority in its midst. It is equally true that the test of a nation's Constitution rests in its ability to reflect all dimensions and the full range of diversity of its people. Creating the Canada which our best thoughts can envision remains something which each of us must make our constant unfailing endeavour, and may you find strength and clear vision in your deliberations to accomplish just this.


Mr Curling: I was extremely impressed. I have just joined this committee not too long ago and I would confidently say it is one of the best presentations I have heard. It talks about the kind of Canada that I myself want to live in, and many of our people, and when I say our people I mean all people, want to live in, the ideal thing. At times we see flashes of it when we go abroad, when you say, "I am from Canada," and the confidence and the smile on their faces and the comfort in the people's faces tell you that you are from a very special place.

I know we are struggling now to write this perfect document called the Constitution. I think, as I hear you say these things that there may never be a perfect document because we are talking about people. There is the realization Canada has to come home to, that there are people in Halifax who cannot go into a bar because they are black or people in Montreal who are harassed by the police because of their colour; maybe it is because of their language too. There was an incident, as you know, that people do not take taxis in Montreal because they are black drivers and are speaking French which does not associate with that colour.

I just want to draw an illustration because of some of the illustrations you brought forward. My daughter was about the age of seven at the time, a few years ago. She came home and said to me that someone on the street had stopped her and asked her where she was from and she said, "I told them Canada, daddy." I said, "That sounds good," and she said, "They didn't look too happy." I said, "What do you mean?"

The next day she said someone stopped her again coming from school and asked her, "Where are you from?" She said, "I'm from Canada," and they asked her, "Where's your dad and your mom from?" She said, "Jamaica." So they said, "Oh, so you're from Jamaica." I said to her: "Well, it's the same there. You ask them where they're from and where their mother is from, or where their grandmother is from and if they say, "Britain," then you say, "Oh, you're from England." It is just a matter of when we came.

I draw that illustration because there are people who are here 300 years and, as you said, there is the traditional culture, our set culture. To use something I have always used, somehow there is a culture here that is playing the last hurrah. We are going to hold on to that tradition itself.

We continue to have history -- I will come to a question -- and I want to make this comment: We have come to a crossroads in our history now. Next year I think we will be celebrating 500 years of Columbus. There is a lot of money being spent, and the history does not examine that, the discovery, and if I dare say, this individual was lost. He thought he was in India, and we celebrate all of that when he went to the West Indies and we called it West India, or West Indies.

My question, then, having made those comments is that the establishment and the continued establishment of advocacy groups here to protect -- you as Ombudsman find that there are people who feel helpless within the system, and within the government, and within governments that have been established to protect their rights, and they have to come to you.

May I say to you, then, and ask you to comment on this: Even after this Constitution is written, even after the Premier may establish that there should be self-government, do you see, still, that helplessness will continue, that these groups will continue to form in order to have some of their concerns redressed?

Some of the bottom-line questions they are asking themselves are: "While I go forward, they're still asking me, `Where are you from and do you have a right to the justice process that is here?' All I need to do," that individual is saying to you, "is to get my rightful place, to have a job and to be treated fairly." Do you see an expansion of more advocacy groups in order to assert themselves in this country?

The Vice-Chair: That was a five-minute question.

Ms Jamieson: That is a huge question. I will try and hit the high points. You are asking me to look beyond the development of the kind of Constitution I would like to see in this country and whether that is going to make a difference for advocacy groups and whether, maybe, it will make a difference in the life of the Ombudsman.

I should tell you that we did an opinion poll last winter and I found that those who are most vulnerable in the province are more likely to have complaints they need to have dealt with. I see from many of the issues that come across my desk the ones who do make it to us, who overcome the obstacles, who find out the necessary information and so on. A lot of the complaints have to do with the fact that they have been disregarded, not treated with respect, not given an opportunity, not accorded the reasons for decision-making, and so on.

I take from this, and from my experience in other posts, the fact that people across the country have and continue to look for an opportunity to participate. If the Constitution provided that opportunity to participate for the people who have been excluded heretofore, perhaps our energies would be focused on maximizing that opportunity. Once the channels are open, once the places are there at the appropriate tables, there will be an opportunity to dialogue, as opposed to clamour to get to the table.

That is the kind of Canada I would like to see, where there are many chairs at the table, where nation-building is an evolutionary process, where issues can be raised next year by the disabled community, or this year, and next year by another, and an opportunity for the country to focus on those and to allow the country to evolve and the Constitution to provide the room and the framework for that to occur.

Hopefully the helplessness will be turned into input opportunity, an opportunity to put forward ideas, to contribute and shape. That is what I am looking for in the future, that is what I am hoping to see in the vision of Canada I have for the future.

Yes, you are right, 1992 is going to be a year when there are going to be a great number of celebrations. I personally have thought a lot about 1992 because of my own heritage. It will be celebrated as a year of discovery. I think it is an opportunity for rediscovery, a terrific opportunity to rediscover that which we really did not take stock of the first time on through, and that is the contribution the indigenous peoples have made and continue to make and continue to attempt to make to the development of Canada and the world. I could not let your 1992 comment go by without saying that.


Mr Curling: You are known to be a woman and a person of outspokenness and directness and I admire that. There are elected individuals around this province, and I am going to ask you directly if you feel the commitment is within those elected individuals to speak out directly to the issues that really address us as individuals. I say that because I think writing this Constitution is so important to all of us, everyone across this country.

There is a line that says, "Listen more to things than to words that are said." It is an African line. As we pass it through our heads, we will find it means a lot. I recall, actually, being even ridiculed about my accent inside Parliament here. The ricochet effect it had on those people who maybe see me as a role model was devastating to them and the sores are there.

Do you see -- I am not asking you about Ontario parliamentarians; I am asking you about all -- that the resolve is there within those elected individuals to face the issues head on and deal with them?

Ms Jamieson: You are asking me a very political question in a very non-political way. I guess my message is that not only should we recognize that people who have been elected to positions have something to say about constitutional development, but all Canadians want something to say and an opportunity to say it. I guess that is how I would answer that question.

Mr Malkowski: I am certainly very impressed with the presentation you made this morning and clearly you have been very straightforward and simple in the type of information you have passed on to us. One comment you made earlier was that it would be a benefit for the committee to share the kind of vision you have shown us today and to make sure that all people are included, aboriginal people and people from various ethnic backgrounds.

Traditionally politicians have in some ways ignored a lot of these people and we have to realize that there are a variety of cultures and a variety of people in Canada. The vision you have talked about has been one of flexibility and a life process. I think those points, specifically, are things that we as a committee must consider carefully.

I have two specific questions for you. Yesterday we heard from Professor Graham and one of the comments she made was a concern about who in fact participates in constitutional discussion, that it is important that all provinces and the premiers of all provinces be involved, but that we missed out the Yukon, the Northwest Territories and native people, who in the past have not been involved, and that without that inclusion of the Yukon, the Northwest Territories and native representation, then the Constitution agreement will fail. Can you comment on the remarks made to that effect by Mrs Graham?

Second, can you advise this committee on some of the important players who need to be involved in the Constitution agreement? I know we have talked about aboriginal people. We talk about specific groups, but maybe you could give us some specifics about who you see needs to be involved. Maybe you have advice on some specific individuals who really need to be involved and people who have to be represented when we talk about the Constitution.

Ms Jamieson: I did not have the privilege of hearing Mrs Graham's presentation yesterday, but I will try to respond to your comments about it. I am saying that constitutional development is a responsibility for all Canadians and that room needs to be made for Canadians who have heretofore been excluded to have an opportunity to put their views forward. That extends, yes, to aboriginal peoples. Last time I watched a conference on the Constitution, I did not see too many women at the table.

There are a number of obvious groups which are clear when you walk down the street and are in a subway car in downtown Toronto, but which we do not see participating as fully as they might in constitutional development. Looking at constitutional development from the perspective of opening up space and providing an opportunity, many people think that is a nightmare, that it is an administrative nightmare, that it is unmanageable. How are we ever going to do that? I suggest to you it is a nightmare for some of us to continue to argue about, fight over, divide up Canada as we know it while keeping the masses out. That is the nightmare I see. The continued exclusion is the nightmare, because we will have to face it. We will have to face the rest of Canadians and their needs, their desires, their demands sooner or later. Why not do it now? Why not do it sooner?

There are a variety of ways one could involve these people. I have thought of a couple of them. You undoubtedly have a whole raft of options. One of the suggestions that occurred to me is that one might have, on an ongoing basis, perhaps for a decade or so and perhaps evolving into a permanent mechanism, a kind of constitutional conference secretariat. We have had conference secretariats in the past, but they have been administrative support only.

I would see such an organization belonging to no one party, belonging to no one government, because I think the optimum would be to even have constitutional discussions where the federal government could participate not as host or chair, but as a party, as one of the parties to the process.

If you had a conference secretariat -- constitutional secretariat, constitutional commission, call it what you will -- which could expand or contract, which could involve the people who needed to be involved depending on the issue on the agenda -- it would be an expanding and contracting commission, assembly as it were, and if the agenda -- let's face it, we are not going to deal with all the agenda items this time around; that is very clear. I hope we will focus our attention on getting the vision right, getting the foundation right, getting a framework that is flexible, accommodating, so the people who do have something to say about the issues affecting them can have a direct role.

I would see the mechanism I have talked about as being one focal point, mutually acceptable to all governments, that would be mandated to bring together the people who have something to contribute on the point, and which would be mandated also to come up with a series of options or proposals which could then be debated in the appropriate forums, and then we could reach a consensus. That is one way of going at it. There are many, but that is one that kind of commends itself to me.

I am loath to list groups. I do not expect that I have an exhaustive list and I would not want to exclude anyone, but I suggest to you that if the approach we took from here on in was inclusive as opposed to exclusive, those groups would readily identify themselves. We would not have to go looking too far. What we have to do is have the attitude to go after it with an inclusive perspective, a willingness to listen and a willingness to look for accommodation.


Mr Wessenger: I enjoyed your presentation, particularly with respect to the area of flexibility. In that regard, I know you did not give any specifics, but let's take the area of division of powers. Would you prefer a Constitution which allows greater flexibility in the division of powers between the provinces and the federal government and to leave more of that to the question of political negotiation, rather than having it rigidly put in the Constitution?

Ms Jamieson: I think it is pre-emptory to focus on those questions until we get the vision, until we get the framework right. Do I see a need for greater flexibility? I see Constitution-building and nation-building as an ongoing process. I see federal-provincial discussions continuing over time. I see a realignment happening all the time, whether we recognize it constitutionally or not. It is an ongoing process. I think there needs to be the necessary flexibility to permit that to continue.

Perhaps in the future we will have discussions involving aboriginal governments as well as federal and provincial governments that somehow need to be reflected in the Constitution. But I really am loath to get into a detailed tinkering with the existing, a sort of 1991-92. I do not think that is my message.

Mr Wessenger: Would your message then be that we should concentrate first of all on the whole question of, for instance, the Canada clause and what Canada is all about?

Ms Jamieson: I think my message is that we should look behind the Constitution as it now stands and get that right.

Mr Wessenger: The last question is on the whole question of embedding social and economic rights in the Constitution. How do you feel about that?

Ms Jamieson: I feel that, again, the focus of what I have to say today is that we need to look behind the constitutional document. Constitutions certainly include the rights of all, and I think they should, but underline "all." I think we are having a little problem with that these days. I think we have done a fair bit in the individual rights area. We have a big challenge in the collective rights area, and I am confident that if we get the foundation correct, the clauses will follow. If we focus on the clauses that are there right now and try to fix them up, I think we will be missing a fabulous opportunity.

Mrs Y. O'Neill: Mr Wessenger asked one of my questions so this will be shorter than I expected. I want to thank you for finding the time to come this morning. I also want to congratulate you publicly for receiving your doctorate from Carleton University. Thank you so much for sending me your very inspiring remarks on that occasion.

Ms Jamieson: Thank you.

Mrs Y. O'Neill: We did quite a bit of work with aboriginal issues yesterday, as has been mentioned. I just wondered if you could say something about the Metis quandary, and second, what you can say about guaranteed representation, which is being examined in certain forums right now.

Ms Jamieson: I do not feel at all qualified or feel it would be appropriate for me to comment on the Metis issues. I can tell you that I spent about 18 months on a special committee out of the House of Commons in 1982-83 that examined the issue of Indian self-government and made some comments on constitutional amendment at that time. Perhaps it would be of interest to your researchers to have a look at it for you. We did comment on the issue of guaranteed representation.

I can relate to you by way of some answer to that a story that represents what we heard. We were travelling in British Columbia and the people of the Haida nation consented to come and see us. Normally we would have to go to them in the Queen Charlotte Islands. In any event, they consented to come and see us. They spoke to us, made a presentation to us, and they were asked about guaranteed representation, whether X number of members or senators or whatever would satisfy their concerns. From the elder who was speaking to us, there was a long pause, a long period of silence. His response was: "That's very interesting. I was thinking more along the lines of an ambassador."

That represented his view and is not unlike the views held by some other aboriginal groups in the country of the relationship that they felt and feel is appropriate in the country. I do not suggest for a minute that is representative of all aboriginal people, but that is one of the things that stuck in my head, the reply to that question when we toured the country, but you might have a look at the report.

Mrs Y. O'Neill: Thank you. We have not had that word used in this context.

The Vice-Chair: Thank you very much. Unfortunately, we are running out of time. There were still a couple of questions, but unfortunately we do not have the time. Are there any last comments you would like to leave with the committee?

Ms Jamieson: Only to wish you well. I am really excited by the opportunity. We were talking earlier, one of the members and I, about what a moment in time it is in this country and what a fabulous opportunity it is to be involved in this process. I am just delighted I have been able to come and share my views with you. You have an incredible task ahead of you. I wish you well. I hope I have been of assistance, and I would like to thank you.

The Vice-Chair: We feel quite privileged for having the opportunity to have heard from you this morning, because we understand your schedule and your responsibilities are such that they might have kept you away from us. We appreciate your coming.



The Vice-Chair: We have next presenting to us the president of the Black Business and Professional Association, Dennis Strong, if you would come forward please. Mr Strong, you have a 30-minute presentation.

Mr Strong: Good morning. I would like to thank the committee for inviting the Black Business and Professional Association to be part of its information collection. I would also like to say that the briefing I received underlined some concerns that have come to my attention since my recent election to the position of president. My opening comments will be more related to the concerns and issues that have been spontaneously brought to my attention and spontaneously identified through the community as falling within the responsibilities of community leadership, and more particularly the leadership they expect from our organization.

The calls of late have centred around the issues and the conflicts that are going on in Halifax and Montreal. Those racial conflicts have implications that reach right into this room. Thematically I would like to position it by saying that silence gives consent. To say that to have these events occurring without there having been some voice of outrage and indignation among those of us who are supposed to be leaders is considered to be a serious shortfall and it needs to be corrected.

In addition to that, it raises the issue we have heard in previous reports around the viability, the need for multiculturalism. It raises issues around the strategy for addressing the question of national unity.

It seems to me that strategically we have been approaching this national unity issue from the standpoint of: "What do we need to do to ensure that the situation in Quebec is addressed? We need to see how we can reapportion the power among the two founding nations."

This concept of two founding nations I think is where the problem lies, because in actual fact the aboriginal people have not had their primacy acknowledged except in a way that was given grudgingly, and the fact that this is a nation of immigrants and increasingly a nation where there are more and more immigrants who are not part of a Eurocentric culture raises some concerns that need to be dealt with by the stance this province and this group can take.

First of all, I believe that instead of playing the language game and playing the, "How little shall we give up?" game, we need to recognize that we are in the throes of needing to redefine Canada and redefine what it means to be a Canadian. That redefinition needs to be inclusive rather than exclusive, and it needs to acknowledge the problems that have been created by forms of systemic discrimination that permeate everything from employment to social access to even actual political access. So I believe that the whole task here revolves around redefining Canada, rather than tinkering around the old edges.

How does this relate to Halifax and Montreal? The fact is that in Halifax we have a community that has been there for as long as many people have been in this country, the so-called founding nations. I have heard from my members that the paved roads actually stop where the community begins. Most people are familiar with the upheaval and the razing of Africville, but there does not seem to be an acknowledgement that there has been a consistent stance that says black folks are expected to receive unequal treatment, although when I talk to my colleagues, my clients and my white friends, they all readily acknowledge, and perhaps you will too, that if a person is not white in this country, he is very likely to experience discrimination, is very likely not to have received equitable treatment.

This is not to say there are not programs under way to try to address these issues, but those programs require a great deal of political will and politics is being played with it. Just as we did when we were talking about and chastising South Africa, there needs to be some acknowledgement that there are some fundamental things that go on in our country that contribute to rather than diminish the kind of systemic discrimination that goes on. Words alone will not do it. I believe the action that is called for is for everyone who has any position of responsibility to include a personal commitment to speak out when they see various examples of our inclusion of everyone being contravened.

I will pause here, because I did not keep track of the time and I want to make sure you have an opportunity to ask whatever questions you need to ask.

Mr Curling: I first would like to congratulate you, Mr Strong, on your appointment as president of the Black Business and Professional Association. I am quite familiar with the work they are doing and the challenges that are ahead, especially in this time of recession, a process that black people especially are going through. I mention that because, as you said, it comes at a time when we are looking as a country at redefining ourselves.

Your statement was that silence also gives consent and that as politicians or leaders in the community it is the responsibility of us, and I include myself here, to speak out. What would you feel is the reason for this silence itself? Would you see this as fair or going against the norms of things? Could you comment on that? What would be the cause of this?

Mr Strong: I will use an anecdote to describe what I think is typical of the reasons for silence. I was at a conference at the University of Western Ontario this summer, and a person came up to me from the maritime provinces and he said: "I know a friend who is having a problem, and that problem is that as a staff member of this bar, the owner has a policy that specifically excludes the admission of black people. The person I am talking about is torn because it is a good job and jobs are scarce, but that is a condition of employment." Therein lies the kernel. He said: "The problem is even further because I have a black friend who came to me about a problem that they had with this establishment and asked me to go to bat with the owner because I used to work there and I know the problem well, but I can't afford to do that. You see, I am involved with a prominent organization, and I have not been in my position for very long, and how would they take it? This is accepted. The police know about it, the politicians know about it, so why should I stand up?"

On the other hand, when there are people of colour who find themselves in a position where what they can say can have some influence, they are concerned about whether or not that position of influence will disappear, whether or not the image of being able to cross over and serve everyone will be compromised when you speak out in the interest of your own group. So these are two of the major factors that permeate the environment we live in, and I do not think it is healthy.

Mr Curling: Let me ask one question in the sense of multiculturalism. As we speak, many times we hear about black and hear about white. I myself wrestle with what a black culture is, because as we move within the black community we know that a Trinidadian and a Jamaican and a Barbadian are quite different people when it comes to culture, or if we go further, a Dominican speaks a different language itself.

As we here wrestle in hearing proposals and putting together, as the Ombudsman said, this very perfect paper called the Constitution, do you think that itself brings about more complexity or confusion in putting together the representation of all people of this quite diverse multicultural society? How would you explain to the committee here what would be blackness, and when you speak about that, culturally, how would you define that?


Mr Strong: I will go back to something that happens when we have these employment equity surveys and the like, and that is that there is a self-selection. To really fall under the umbrella of black people has a couple of criteria. One, you have to acknowledge that you have common needs, concerns, and experiences with other people who have African ancestry. The other part of it is something that happens a bit more inadvertently; that is, because of the other circumstances I describe, you can transcend all of these national boundaries by being able to recognize those circumstances where your blackness, your visible identity, puts you at a disadvantage. It provides an added burden. It puts an onus upon you that is not upon other people.

The simplest and most common way I have of describing it is that when it comes to human rights and civil rights and race relations, my involvement in these things is not optional. I encounter them every day, I must experience them every day, and this is true of all black people. Some choose to ignore it. Some would prefer to say that is something they have not experienced, but that is more in the context of not having acknowledged it rather than not having experienced it.

Mr Winninger: There was a time when we did not have a Human Rights Code, when we did not have a section 15 equality provision in the charter. Mr Curling referred obliquely to a case in Montreal where a man was denied access to a tavern because of his colour: the York Hotel case. There are other cases where people were denied access to commercial licences because they happen to be Jehovah's Witnesses: the Roncarelli-Duplessis case. Since 1982, at least in Ontario, we have had our present Human Rights Code. Since 1985 section 15 has been proclaimed, which is supposed to ensure equal access. I am just wondering if you can tell me how well these legislative provisions are working from the point of view of your association and maybe the black community in general.

Mr Strong: I will add another perspective on it, because I also had occasion to work for the race relations division of the Ontario Human Rights Commission. I can tell you that one of the sources of my frustration was that, first of all, the person who is discriminated against has to exert a lot of time, a lot of effort, and frequently a lot of personal risk to raise the flag and say, "This isn't fair." It is a very common practice for people to say, "There you go crying racism again," as though you are crying wolf. Those people who actively seek to exercise the rights that exist under the code are in many respects proscribed -- they feel constrained -- from being able to do so.

The other thing is that there has not been, and there does not seem to be, the political willingness to actually have the government take proactive initiatives. We have seen in the media countless examples of a little work that was undertaken by the Urban Alliance on Race Relations at York University, where they sent out applicants, black and white, with the same qualifications to interviews. We have seen documentation of the overt and blatant discrimination. There have been surveys and studies that show the managers and the executives at that time admitted that they would discriminate, that they had a bias against the inclusion of people who were visible minorities and women. Yet once these things become public, the apparatus takes no action.

In actual fact, in the context of being a behaviourist, what you are doing is rewarding unwanted behaviour. You are saying, "Okay, we know it's tough on you." When it is time for employment equity, remember who owns the media, so the interpretation is that employment equity is reverse discrimination that is going to impose quotas and that as a result we are going to suffer a diminution of the quality of our workforce. Well, excuse me. I happen to be a management consultant who deals in quality, and I happen to be particularly responsible for helping organizations identify why they do not perform well. A very substantial part of it is the inability to recognize and make use of more diverse resources so that you can respond to the changing needs in the marketplace. We have once again silence giving consent, and on the other hand that causes the myths and the misinformation to grow and not be things that are workable.

Then you get this impression that multiculturalism has to be a big drain on our society, that it has to be something that is undermining and dividing our country rather than bringing it together. This is not true. But people do not want to look behind the things and see why multiculturalism is necessary. You have probably had occasion to be an individual who was seeking to enter a group where you wanted to be a member. It is easier to make that entry if there are others who would support that or others who want to do the same thing or are similarly deprived. A failure to have multiculturalism that is proactive and addresses the real issue of racial inequality and racist practice within our society is the reason multiculturalism gets a bad rap. It gets a bad rap because we use the political jargon to allow it to become a competition between everybody who does not have what he wants. I rambled a little bit, but these are just some of my pet concerns. I hope I have responded to your question.

Mr Winninger: The question was, basically, how is our human rights legislation responding?

Mr Strong: It is not, very well.

Mr Offer: Thank you for your presentation. I certainly do not mind the responses I am hearing. They provide many more questions. I think, as legislators, we are sometimes left with certain initiatives on which we try to get out information. Then sometimes it is misinterpreted, which is called misinformation, and then there are others that interpret it on the basis of perception, which I refer to as mythinformation. The real problem is talking about what it is that you are trying to do, why you are trying to do it, and how you are going to accomplish it. I think a lot of the concerns, and in many cases the fears, would just go away.

My question to you is, from your perspective, and you have a fair degree of experience, what is your feeling about people and their real ability to input into government, whatever the issue may be? We travelled last winter on this matter and people came before the committee, and there was no question that there was a real sense of distance between those who sat in your seat and those who sit in this seat. We talked about how it is we can get people to be part of this Constitution formation, whatever it is. In fact, people were talking about something much more basic. They said: "Sure, that's a difficulty, but we don't even feel we can input some of the more basic needs and wants that we have in terms of legislation, initiatives, policies. It is not so much at a constitutional level, but indeed at an everyday, affect-my-life level." I am wondering if you, in your position, have experienced that, and if you have any advice you can give to us as to, is there a way we can shorten the distance between us and the people, the general public?


Mr Strong: I welcome that question because that in itself is the first step towards being able to get closer. I will say that everybody is tuned into the same station and it is called WIIFM -- What's In It For Me? That is not a put-down; it is a reality. Your comments sort of bear that out. One of the things that has happened with government, and it is a source of frustration, is that there seems to be this whole culture that conspires to not tell it like it is, down to the language, the euphemisms, the symbolism; this gets to be a symbol for that and something else gets to be a symbol for something else. It is hard to unravel it all. It exhausts your energy and exhausts your resources to try to make sense of it all.

I had occasion to make a contribution to a study or consultation being done by the Ministry of Education. This is a process that has been going on for a while in terms of how we are going to be able to allow the parents of children who are designated as needing special education to have some say in the process. The fact of the matter is that there was no feedback from the initial consultation. Now we are back asking some more questions, "What did you do with my stuff?" So I believe that the approach to communication is flawed. I think a healthier approach to communication would be one that takes the time to acknowledge that you have asked for something, and takes the responsibility to say what you heard and what you have done with it. By doing so, you earn the right to come back and ask again. If you do not close that communications loop, if feedback in plain language, in the language of the people who have given you the information is not a performance requirement, then you will have distance and you will have distrust.

I can tell you that having grown up in the United States, I believe that on a personal level my access to government is far greater than I have ever experienced anywhere in the world. I applaud that, but the perception and the access for the larger group of people is going to require a very basic change in communications philosophy and policy. That is a long answer to a short question.

Mr Harnick: Just very briefly, in your presentation you talked about the concept of the two founding nations. We have had numerous people come before us talking about that concept and talking about expanding it to three founding nations. Now you come and quite eloquently, and I think quite properly, tell us that the concept of founding nations is no longer relevant.

Mr Strong: That is right.

Mr Harnick: It would be of benefit for the committee, I believe, if you could elaborate on that. I think your response to Mr Offer in some degree answers that question, but if you could give us some further elaboration, it would be helpful.

Mr Strong: Let me give you a street version of what is going on here. There is a concept called "almighty whitey," and that is an expression that gets pinned on numerous situations where it is very apparent that action was taken to reinforce a notion of white superiority. Not appointing people to senior positions: You go through the Report on Business in the Globe and Mail and you see all these appointment notices, and in the 12 years I have been doing that I have seen maybe nine black faces, and that might be high.

Then you look at the conflict, between Quebec and who? Who are they conflicting with? They are conflicting with a value system that says: "There is a superior way. We found it, we're keeping it and you lost, and we're preoccupied with keeping you in your place."

My goodness, we have Oka and all these land claims. If you read the comments that are being made, sometimes explicitly they are saying: "Look, you're crazy. We got this. You don't expect us to give it back." If you did not straighten it out before, it was sort of let the buyer beware. So our ethics are not such that we can be trusted to keep our word.

I would say that all the people sitting around this table would cringe from being described in that way. What happens if somebody catches you at it is that it may not have been what you intended, but it has become a reflex now. It has happened for so long that it is inadvertent, but the people who are getting it in the neck do not want to know, "That's my reflex." You cringe and so what happens is that we have gone and we have said "multiculturalism" and "employment equity." We have used these terms in the place of anti-racism. They changed the name of the race relations division to anti-racism; there are still people who are crying about that. But you had an effective way of dealing with that: "Don't give them any power. Don't allow them to have any leadership. Have conflicting bureaucratic envelopes for them, so they do not know who they belong to." We talk about access out of one side of our mouth and we do something else.

These things have become historic. Once again, I grew up in the United States and there is an historic conflict there that I question can ever be reconciled. But here we have an opportunity to really do something meaningful. Here we have an opportunity to stand up and fess up and move on. All we have to do is say, "A lot of these things, it wasn't what we intended to do, but we really better change it because it is working against us all." When you start talking about founding nations and language primacy and things of that sort, people who are not caught in that loop are saying: "What is this? What am I? Chopped liver? I'm here. I'm paying taxes. I'm abiding by the law. I probably put 30 to 40 hours a week into trying to help this country grow, and then I got to take this? No."

What we need to do is give some true manifestation to the fact that everybody is equal, that the rights of everybody in this country are absolutely the same. They deserve the same protection and they deserve the same outcry when they are being violated. They deserve the force of the law and they deserve the protection of our legislators. From that standpoint, I believe what really needs to happen here is that we are going to have to put aside these old feuds. We are going to have to stop this childish power struggle, this dialogue of the deaf, because you cannot win it. We are going to have to give legitimate power and authority to a broad cross-section of entities. It works.

One of the things I do in my practice is group facilitation, and time and time again we have groups of people come in who are of varying backgrounds, varying points of view around something that is very crucial. We find out where WIIFM is for each person with respect to a particular action. Instead of trying to treat this thing as holus-bolus, you might want to take a more corporate approach, where you are looking at key performance factors, key results areas and break it down task by task and make sure that you do not move forward without getting a broad cross-section of input. Did that help?

Mr Harnick: I appreciate it. Thank you.


Mr Malkowski: Your presentation today I think really hit it on the mark several times. I certainly can sympathize when you talk about oppression, be it oppression of minorities, women, disabled people, aboriginal people and so on. I think we have to look at what causes this oppression. You have talked about some of the myths and some of the attitudes that lead to that paternalistic way of looking at other groups.

To talk specifically as it relates to the Constitution, do you it is important that people have access to the justice system, and in many ways also to financial help because the amount of money and energy that is involved in trying to get involved in any legal action and to get involved in the legal system is often very difficult for people.

Also, educationally, how can we work to end the type of racism that we often see? How do we include sensitivity training in the educational system and how do we get representation from a variety of groups within the workforce? If we implemented some of these ideas, if we had within the educational system ways so that people became more sensitive at that time in their lives, if we were able to include more people from a variety of groups in the workforce and if we were able to give the financial means to people so they could really access the judicial system, do you think that would in many ways lead to a solution of some of these problems?

The Vice-Chair: I would ask that you make your comment fairly short because we have another presenter at this point.

Mr Strong: First of all, I agree that some of the crucial areas are education and the legal system. I also agree that there are financial implications that often act as barriers to people being able to participate fully in society. When you talk about sensitivity training, I believe there is going to have to be some sensitivity leadership. There have to be sensitive models before people will actually be able to develop a curriculum of sensitivity in school systems.

The criminalization that happens, particularly to black children and to native youth, is something that is more a byproduct of negative stereotyping and racist attitudes and inclinations than it is of finance. A simple example is that we still have a large number of young people who get caught in the pranks of youth and get absolute discharges. That is less likely to happen for a black child. It is less likely to happen for a native child. Let's start at the fundamental things that do not really cost a lot of money, but just call for a change in attitude and behaviour. We need to be very careful what we reward.

The Vice-Chair: With that, Mr Strong, we would like to thank you for your presentation.


The Vice-Chair: We have Robert Martin presenting to us next. He is professor of constitutional law at the University of Western Ontario and I am sure that what he will be presenting will be interesting. The committee has seen that his speciality is constitutional law. I believe you are the first professor of constitutional law we have had so far. I might be correct. You have an hour.

Mr Winninger: Anne Bayefsky

The Vice-Chair: Thank you; I stand corrected.

Mr Martin: Thank you for that observation, Mr Chair. I would think it would be appropriate to congratulate this committee on the fact that I am only the second professor of constitutional law. It seems to me that one of the basic rules any process of constitutional reform should follow is that the fewer professors of constitutional law involved, the better.

I would like to begin, if I might, by just taking a very few seconds to tell you a little bit about who I am so you have some sense of where I am coming from and how I come to be saying the things I am saying.

Although I teach at the University of Western Ontario, I was in fact born in Toronto, grew up in Toronto and went to school in Toronto. After finishing high school, I attended the Royal Military College of Canada in Kingston, graduated from there, served in the Canadian regular army and went to law school at the University of Toronto.

After completing that, as many people did in those days, I joined the Canadian University Service Overseas and went to Africa where I spent the next decade teaching in a number of different African university law schools, specializing in and having an interest in constitutional law. I spent a year at the University of London, studying African law and Islamic law and eventually found my way to the University of Western Ontario. I continue to have a very active interest in African matters. I have spent sabbatical leaves and travelled on a number of occasions back to Africa. I have an active interest in the Commonwealth and, at the moment, among other things, I am a constitutional adviser to the African National Congress of South Africa. I teach constitutional law at the University of Western Ontario. I also teach media law. Very briefly, that is who I am.

I would like to begin my substantive remarks by saying a little bit about this process of constitutional reform with which Canadians have been mesmerized for more than three decades now. This process that you are now involved in began, to give a precise date to it, on October 6, 1960. A conference of attorneys general, chaired by the then federal Minister of Justice, was held in Ottawa to look at questions of constitutional reform. There began a process which continues today and which appears to me, at any rate, to be endless. I suspect it is the fate of this country to be involved eternally in attempting to reform its Constitution.

We have, as I have suggested, become mesmerized by our national quest for the perfect Constitution. We seem to be convinced as a nation, as a people, that there is a perfect Constitution to be found out there somewhere, and that if we search long enough and hard enough, we will find this perfect Constitution. Having found the perfect Constitution, all our problems will thereby automatically be solved. It is as if we believed as a people that if we could create the perfect barometer, we would thenceforth have ideal weather.

I would like to suggest to you that there is no such thing as a perfect Constitution, and that even if there were such a thing, getting it would not magically solve all our problems. A Constitution cannot create a perfect society. The people who live in that society, through their political interactions, through their social interactions, through their cultural interactions, shape and create that society. A Constitution does not do that. We have in this country, I think, invested constitutions with almost magical properties. I would like to remind you that constitutions are not real things. We have come to believe, I think, that they are real, living, concrete things. Constitutions are simply words on pieces of paper. By themselves they are capable of nothing. They must be applied. They must be made concrete by human beings.

What can constitutions do? What is possible with constitutions? I would suggest that some fairly modest things are really all that constitutions are capable of doing. Constitutions create the basic institutions of the state. They define the institutions of the state. They give powers to the basic institutions of the state. Second, they define the relations between the state and the citizen; they define the rights and responsibilities. I think it is worth emphasizing that correlative notion of responsibilities. We seem to have become very much affected, and I will return to this point, by the American notion that constitutions simply create rights for individual citizens. But the Constitution does and must also cast duties and responsibilities on citizens.

Finally, a Constitution can in, very broad terms lay down certain general goals or general principles which should guide the state. But it can of course in no way, in and of itself, guarantee that those goals or principles will be achieved or fulfilled. The Constitution, then, is simply the framework within which political activity takes place in the state.

I think it is also important to recognize that constitutions are or should be seen as different from ordinary laws. Ordinary laws are passed often to deal with momentary or fleeting crises or issues. Constitutions are, in theory at any rate, intended to last. Constitutions are not something which should come and go, which are changed regularly. They are meant to be there over the long haul. I would suggest to you -- and this criticism is by no means restricted to this committee or to anybody in Ontario -- that our approach to constitutional reform in this country has been based on some serious misapprehensions about what is possible in the crafting of constitutions. Let me briefly suggest what I see as some of these flaws.


First, and I think fundamental to the process of constitutional reform in this country, has been a systematic effort to abolish or deny our own history. This country has a history. This country has a culture. This country has tradition. Constitutions should be an expression of the history, the culture, the traditions of a particular society. Making a Constitution is not like going to the supermarket. It is not simply a question of going down the aisles and picking whatever happens to be attractive and putting it into a shopping cart.

One of the things that was very obvious in the early period after independence in Africa, for example, was the failure of the constitutions that were imposed upon African states. A fundamental reason for that failure was that the constitutions imposed upon those states were an expression of the history and the culture of the United Kingdom. They did not arise out of the experience, the history, of Tanzania or Kenya or Zambia or whatever.

In our process of constitutional reform we seem to be almost obsessively attempting to forget that this country has a history too. We seem also to be denying democracy. We seem to be disregarding the necessity of strengthening democratic values and democratic institutions. We systematically undermine our democratic institutions; in particular, our legislatures. We delegitimate politics. We increasingly believe in the quick judicial fix to all social problems.

We have been very much denying the fundamental notion, a notion which I would suggest underlies all democratic politics: the notion of the citizen. We have in our process of constitutional reform been focusing far too much, in my view, on interest groups. When we focus on interest groups we deny the citizen. We deny the citizen, who is, I would suggest, a multifaceted man or woman. A citizen is a man or woman who is reacted upon and who reacts to and makes decisions about a whole host of issues and concerns simultaneously. I would suggest that a member of an interest group is, by contrast, a narrow, one-dimensional human being. I fear we are involved in a process of constitutional reform where at the end of the day what we are going to come up with is something that will resemble a treaty among interest groups, not a Constitution for a state.

Third, we have throughout this entire process been progressively Americanizing our institutions and our ways of thinking about our institutions. We have almost reflexively been reaching for American solutions and American institutions and American values. We do have -- to repeat -- our own ways of doing things. It is certainly not apparent to me that American ways and American institutions and American values are superior.

We have been putting more and more power, more and more authority, in the hands of courts, and especially in the hands of lawyers. We are increasingly giving up the business of being active citizens in a democracy and handing over our political battles to lawyers, to be fought out on our behalf in the courtroom. That is not the way citizens in a democracy operate. A contemporary buzzword is that of "empowerment." People like to talk of empowering individuals or various groups of individuals today. May I suggest that what constitutional politics does is not to empower people; it is to empower lawyers. The beneficiaries of constitutional change in this country over the last decade have overwhelmingly been lawyers.

I would suggest that our process of constitutional reform has been shot through with an almost obsessive liberalism, which does two things. First, it focuses on the individual as being at the centre of politics and social activity. To repeat a point I have already made, it is not part of the Canadian tradition. The individual certainly has been at the heart, has been the very soul, of the American political system, of American values, of American ideas. Our traditions have been much more collective and much more social, yet we focus more and more on the individual.

Finally, we seem to imagine, as the other aspect of what I would call an obsessive liberalism, that we can have a constitutionalism which knows no limits, that we can have everything for everybody, that we can -- to repeat the point I began with -- make a perfect world through constitutional reform. This is an illusion.

To illustrate this fact, I would remind you of the results of the recent Askov decision by the Supreme Court of Canada. As you recall, Askov is the decision in which the Supreme Court of Canada last fall said that any delay of more than eight months in bringing an accused person to trial is considered to be unreasonable and is therefore in violation of rights guaranteed under section 11 of the Canadian Charter of Rights and Freedoms. The result of the Askov decision has been that in Ontario alone roughly 40,000 criminal charges have been dismissed. What is the problem with Askov? It seems to me the problem is very simple. It proceeds from this belief that we can have everything. We can all have rights. We can guarantee that accused people are treated nicely. We can guarantee that victims are treated nicely. We can guarantee that everything is wonderful. But it does not work that way. There is always a price.

Let me just say a couple of words about some of the specific issues this committee is to deal with. First is the question of the Canada clause. Might I just note parenthetically that, although it is not officially called this, we already have what is known as a Canada clause in our Constitution. Section 23 of the Canadian Charter of Rights and Freedoms, which deals with minority language education, is already known to all lawyers and others interested in these things as the Canada clause. May I also say that the Canada clause strikes me as institutionalized piety. What are we trying to do in this Canada clause? Are we trying to have a formal statement that says Canada is the swellest, nicest country in the whole world? That seems to me the essence of what is being suggested for the Canada clause. We are going to say we are the nicest people on the face of the earth; we have the nicest Constitution ever.

Before I come to the charter, which is what I want to talk about primarily, let me say a little bit about the suggested commitment to multiculturalism and the form which it is to take. There is, it is suggested, to be a declaration that says that all cultures, all values, all creeds are equal. May I suggest that this is yet another manifestation of that obsessive liberalism I talked about. More precisely, it is something which sociologists call cultural relativism, which suggests that all cultures, all values, all thoughts and all ideas are equal.


It seems to me, to begin with, this is a very serious misapprehension about the very nature of culture. Culture is not, as I think we often imagine in this country, simply a matter of the way people dress, the ceremonies people engage in, the dance people adopt or the foods that people like to eat. Culture is something far deeper and far more profound than that. Culture has to do with fundamental values and ideas about human beings and their relation to each other in society. It is simply not true in any context that all cultures are equal in this sense. All ideas are not equally sound. All values are not equally human. To be more concrete, all values and ideas are not equally desirable in Canadian society.

Let me give you one very obvious example about a Constitution saying that all values and all cultures are equal. There are cultures in this world, to take one example, which recognize polygamy. By saying in a Constitution that all cultures are equal, would we be saying that we thereby implicitly give our approval to polygamy? I suggest to you that is a reasonable implication from a formal constitutional recognition that all cultures are equal. I also suggest to you that the possibility certainly exists that this kind of multiculturalism means, in effect, no culturalism.

It seems to me it is very important to recognize, as I already argued, that this country does have a history and that this country does have a culture. As we slip further and further into the embrace of the United States, surely one of the things that is incumbent upon us as Canadians is to rediscover ourselves, our identity and our distinctiveness. By officially adopting a position of no culturalism, I do not think we assist that process.

Finally, I simply note that this sort of declaration about multiculturalism would be absolutely, utterly, unequivocally unacceptable to the province of Quebec. One of the major things, of course, that we have to concern ourselves with is finding a new accommodation with the province of Quebec. I have not the slightest doubt that Quebec would find such a declaration to be absolutely unacceptable.

Let me also say briefly, and I agree entirely with the last speaker, that a fundamental requirement of a Constitution in a democratic society, it seems to me, is that it must guarantee the equality of all citizens. It seems to me a Constitution cannot do much more than that. There is a suggestion about strengthening the rights, for example, of disabled people. I repeat the point that all a Constitution can do is to guarantee the equality of all citizens.

I think there is some confusion here between the proper functions of a Constitution and of human rights legislation. A Constitution is not, I would think, some sort of supernational human rights code. Perceptions about what should be in human rights legislation are going to vary over time. They are also going to vary from province to province, and that is one of the reasons we have a federal system in this country.

Let me just make a few observations about the charter. There is a view in this country, and I suggest that the questions this committee has prepared seem to indicate some support for that view, that the charter is wonderful, that the charter has been wonderful and that the more we can have of the charter the better. I take a very different view and, if I might ask your indulgence, I would like to tell you just a brief story, which you may well be familiar with.

In 1974, the Parliament of Canada made amendments to a federal statute called the Canada Elections Act. The Canada Elections Act, as its name suggests pretty clearly, is the federal statute that deals with the conduct of federal elections. These changes that were made in 1974 were designed with one overriding objective, to limit as far as possible the role which money plays in federal elections, to prevent federal elections in this country becoming, as they certainly have in the United States, the private preserve of the wealthy. I am sure you are aware that in the last national elections held in the United States the average cost of a senatorial election campaign was around $4.5 million. Clearly that means that national politics in the United States belong to the wealthy or those who have wealthy friends.

The changes made in 1974 were designed, as far as legislation can do this, to prevent that happening. So they said, first, that any candidate who got 15% of the votes in a constituency would get a subsidy, a rebate from Ottawa, to help pay for the costs of running election campaigns. As a corollary or a complement to that, the legislation sought to limit the amount of money that could be spent on election campaigns. There is a formula in the legislation. It said that candidates and parties can only spend a defined amount of money on campaigns. But the legislation recognized that there was an obvious way around these limitations.

Let me just suggest to you what the obvious limitation is. In the average federal constituency in this country, during the 1988 federal election, the spending limit was around $50,000. Let's take an imaginary riding, the riding of London Northwest and that I am the candidate for the Flat Earth Party in the federal constituency of London Northwest and have a lot of very wealthy friends. I am able to raise $500,000 to spend on my election campaign, but the law says I can only spend 50 grand. What do I do? What happens?

What happens is very simple. Overnight, magically, fortuitously, there comes into existence a group called the Independent Citizens Committee to Elect Rob Martin, nothing to do with me and nothing to do with the Flat Earth Party, just a bunch of public-spirited folks who think I would be the best possible candidate. What do they do? They spend $450,000 trying to persuade the people of London Northwest to vote for me. So much for the spending limits.

The people who drafted the law in 1974 foresaw that, and they also foresaw that interest groups have a corrupting affect on election campaigns. What was said in 1974 was that only a recognized campaign committee of a duly nominated candidate can spend money and incur election expenses. It limited, obviously, to a degree the participation of people outside actual campaign committees, but it did it only during the period of federal election campaigns. These limitations were tested in the federal elections of 1979 and 1980. There were loopholes and the loopholes were obvious.

In 1983, amendments were made to the legislation to tighten these restrictions on third-party activity and on campaign spending. Amazingly enough, when these amendments went through the House of Commons they went through unanimously. It is very hard to believe. All three parties in the House of Commons supported this measure. It probably never happened before; it probably will never happen again.


But what occurred after that? The charter came along, and the charter was seen by a group of worthies I am sure all of you are familiar with, the National Citizens' Coalition, as being a neat way of fighting against various restrictions on the rich. The National Citizens' Coalition went to court to attack these limits on election spending and was successful. Even though every member of the House of Commons had supported this legislation, one judge in Alberta held that it was invalid. One judge in Alberta then was able to overturn the deliberate political decision of all members of the House of Commons.

What was the result? Well, we all know the result. During the 1988 federal election, corporations, and especially the Canadian subsidiaries of American corporations, were able to spend millions and millions of dollars persuading Canadians that free trade would be good for them and that they should elect a Tory government. The charter is the reason that was possible. Had it not been for the charter, corporations would not have been in a position to spend absolutely without restriction and would not have been able to interfere as they did in the electoral process.

The charter has not been the source of wonderfulness in this country. The charter has in fact been a means whereby those with money, those able to afford the services of lawyers, have been able to attack and very often successfully overturn the democratic decisions of elected representatives of the people.

There is another recent, obvious example. In 1988, Parliament passed a statute called the Tobacco Products Control Act. It is not a very catchy title, but the point of the Tobacco Products Control Act, as I am sure everyone is aware, was to prohibit the advertising throughout Canada of cigarettes, pipes, cigars and so forth. What happened? The charter made it possible for the tobacco companies to go to court to attack that legislation, and they have been successful.

The story in this litigation is clearly not over. This case clearly is going to end up before the Supreme Court of Canada, but it is an example of what has been happening over and over and over again with the charter. It has been the greatest thing ever to happen to corporations in this country. It has been the means used by corporations to attack democratically created limits on their freedom of action.

There is often the most bizarre pretext. Let me give you one of the leading charter cases, a case called Big M Drug Mart. Big M Drug Mart went to court to uphold freedom of religion. Is that not interesting? Why would a corporation called Big M Drug Mart be so interested in freedom of religion? The reason was that there was a statute which said Big M Drug Mart in Calgary could not be open on Sundays. Big M Drug Mart wanted to be open on Sundays. What did the charter do? The charter gave it a basis for going to court to fight for its right to be open on Sundays for freedom of religion, and the courts obligingly said corporations have freedom of religion. What a neat idea. I always wonder, when I look at this case, where do corporations worship? We all know what corporations worship, but where do they worship? If you look at the actual results in charter cases, you see over and over again that the charter has been about empowering corporations and empowering the wealthy to go to court and attack democratic decisions reached by legislators.

That is why, for example, I have a very different view of section 33 of the charter. Far from being the work of the devil, as I think many people tend to view it, I see section 33 as being the final, last chance for democratic politics in this country. I see section 33 as being the means through which the people's elected representatives, whether in a provincial Legislature or in Parliament, can assert the people's will against that of the judges.

Let me give you an obvious example of this. There is now a royal commission on election financing and generally about the organization of elections in this country winding up its work. Many of the briefs presented to this commission had to do with this issue of controlling election spending. It would seem to me that it would be a highly popular matter for Parliament to reintroduce these restrictions on election spending, and an obvious way to ensure that those restrictions were insulated from judicial review would be to rely on section 33, to say that these restrictions on election spending will operate notwithstanding the charter.

I would also say, very briefly, that the charter has had a profoundly Americanizing effect on Canada and our way of thinking. Do not take my word for that, let me quote the well known American political scientist, Seymour Martin Lipset. I am rather reluctant to do this because I think one of the unfortunate characteristics we have as Canadians is that we never want to believe that anything about us is true until we are told it by an American, but this is what Seymour Martin Lipset had to say: "The most important step that Canada has taken to Americanize itself, far greater in its implications than the signing of the free trade treaty, has been the incorporation into its Constitution of a Bill of Rights, the Canadian Charter of Rights and Freedoms."

I hope for the sake of the mental and intellectual health of everyone in this room that you do not have to read law reports very often, but for those of you who do, if you look at what our Supreme Court is doing these days, our Supreme Court has turned itself into an appendage of the US Supreme Court. It is almost by reflex now that our Supreme Court relies on American decisions, American doctrines, American textbooks and American articles.

It is actually very interesting that one of the things the charter has done, in my opinion, is create jurisprudential free trade. It has been very much like economic free trade with the US. It is entirely a one-way street. With economic free trade all the benefits, in my opinion, have flowed consistently southward. With jurisprudential free trade the doctrine has flowed consistently northward. If you read any recent judgement of the Supreme Court of Canada, you might be forgiven for asking yourself the question, do our judges understand that this is still a separate country?

I hasten to add that this is a one-way street because Canadian doctrine, Canadian jurisprudential ideas have not had a corresponding effect on the US Supreme Court.

The charter has also -- and perhaps I should wind up at this point -- tended to reinforce the notion that for every social ill there must be a legal solution, there must be a legal remedy. I suggest to you this is profoundly misguided thinking. Political issues, social issues are ultimately and can ultimately only be solved through political and social action, through political and social change. We cannot create the perfect society by creating the perfect Constitution.

So I suppose what I am suggesting to you at bottom is a degree of modesty in constitutional reform. Let us lower our sights a little bit. Let us think about a Constitution that deals with Canadian reality in a Canadian way.


Finally, let me, just before I conclude, penultimately suggest a couple of things which I think could be done with our Constitution. Constitutional lawyers, when looking at the language, the structure, the style of a Constitution, talk about a distinction between what might be called on the one hand, popular Constitutions -- people's Constitutions -- and on the other hand, lawyers' Constitutions. The existing Constitution of Canada is, pre-eminently, a lawyer's Constitution. It is a series of documents written by lawyers for lawyers. Our Constitution is supremely unintelligible to people who are not lawyers -- largely meaningless, profoundly alienating.

One of the things we could do is to attempt to make our Constitution more accessible, more popular, to create a structure which would make it available to people who are not lawyers, to write it in language which is not lawyers' language, but popular language.

I would commend to you, if you have the opportunity, and perhaps the research staff could lay their hands on a copy of this, to look at a very interesting and sound recent Constitution, the 1990 Constitution of the Republic of Namibia. I am not suggesting adopting the Constitution of the Republic of Namibia, but what would be very interesting would be to look at its language, because it was consciously written in a popular style, not in a lawyer's style.

Finally, turning to the charter, I would suggest that rather than broadening the charter, creating more rights, inspiring more litigation, putting more dollars into the hands of lawyers, one might want to see some limits in the charter. I would advocate very strongly an amendment to the charter which said that the rights set out in the charter are enjoyed and can be enjoyed by individual human beings and individual human beings alone. The corporations do not have freedom of religion. Corporations do not have freedom of expression. Corporations were never intended to be afforded these sorts of guarantees.

I would also give serious thought to limiting the notion of standing. "Standing" is a lawyer's term to refer to the ability of persons to raise issues before courts. If I am permitted to raise a constitutional issue before a court, I am said to have the standing to raise that issue. Our courts have created, in my opinion, an absurdly broad notion of standing. Basically, anybody can take any issue to court. If I do not like a law, if I am unhappy about a particular statute, if I think that statute is really not very nice at all, I can take that issue to court. What this means, of course, when in practice anyone can take any issue to court, is that our courts have been transformed from being forums -- which is all they are capable of being -- for resolving legal issues, into a kind of super-Legislature. But it is very interesting that the way the Supreme Court of Canada operates today is more and more like a legislative committee and less and less like a court. The Supreme Court allows a broad range of people to present their opinions. It allows, as I said, almost anyone who feels like it to raise almost any issue. That is not in a democracy, in my opinion, the proper province of the courts. I would suggest, then, that if the charter is to be changed, it should be changed in the direction of limiting it rather than expanding it.

So my overall prescription is much more modesty and circumspection, less fantasy about the magical abilities of constitutions to create perfect societies, a recollection that this is not the United States. This is a country which does in fact have its own history and traditions and I would think above all a commitment to the democratic process, which means, I would suggest, that in a democracy the crucial political and social issues are resolved through the political process. They are resolved by the people. They are resolved by the elected representatives of the people. They are not resolved, which is the direction we have been moving in more and more, by nine aging lawyers sitting far removed from reality in Ottawa.

I have taken far too much of your time and I appreciate your affording me the opportunity. Thank you.

The Vice-Chair: Thank you very much, Mr Martin, for what I am sure is a presentation that challenged the views and thoughts of many of our committee members. You spoke on issues that certainly as an individual made me think about some of the things I may not agree with, but makes me think about them. With that, there are a number of questions and we will start with Mr White.

Mr White: I was quite fascinated with your description of the 1988 election. It does show a little bit about how the democratic process can be bought and sold, and sometimes the money exchange does not even happen in this country. One of the other comments from the United States you mentioned, from Dr Lipset, I thought was rather fascinating, given the fact that he has made something of a career of studying our country. I am not quite sure what would be the most devastating of those two events in regard to our national identity.

You commented a great deal on the bill of rights, the interpretation of that in court, and the way in which organizations which essentially represent money, capital, organization, structure, physical plant, can achieve standing rights before a court.

It strikes me that all of a sudden we have heard a great deal about social rights, a social charter, and the idea that some of those things, some of that vision we have as a country, should be incorporated. But then, all of a sudden with your description I realize we already have a social charter, but the society that is recognized is a very limited one; it only recognized people who are on boards of directors.

I am wondering if you would see a recognition of basic rights in terms of education, food, housing, such as occurs in Europe, and a sense of variation in terms of standing rights, a recognition of other groups and corporations as being divergent from the kind of limitations you were talking about.

Mr Martin: It would seem to me that through our political process there was a time when indeed we did recognize all those things.

Mr White: There was a time.

Mr Martin: There was a time, and what has been happening in this country is that whether we want to call those rights or whether we want to simply call them social realities, they are being slowly ground away. The basic right of Canadians to a decent education is clearly one which is being ground away. The right of Canadians to health care is under attack. The right of Canadians to basic social services, the right of Canadians to a decent standard of living, all these are being attacked and they are being attacked primarily through the actions, in my opinion, of large corporations, overwhelmingly American corporations.


I find it one of the interesting paradoxes that one of the major instruments that has been used in mounting this attack on the social rights of Canadians has been the Canadian Charter of Rights and Freedoms. It seems to me, to repeat the point, that one must not imagine that writing these things down in a Constitution guarantees them. The kinds of things that you are talking about, and that I agree with entirely, must be guaranteed, if they are to be guaranteed, through the political process. There was a time that our political process did that.

If I may, very briefly, I think it is worth looking at politics in the United States. I find American politics fascinating. American politics are non-stop; it is a 24-hour-a-day, 12-month-of-the-year circus that continues incessantly. There are always elections; there are always campaigns; there is always a political crisis and a political controversy. It goes on and on. After a while, it seems to me, you begin to realize that politics in the United States are simply another part of the broader entertainment industry. Politics in the United States have very little to do with people's real lives, with the real social agenda in the United States. I suggest to you that the overriding characteristic of American politics is that the social and economic agenda in that country is not set through the political process; it is set in the corporate boardrooms. Politics are just this kind of harmless sideshow that rolls on and on.

One of the things I think used to distinguish this country from the United States is that, to a substantially greater extent, our social and economic agendas were set through our political process. The people set, to a much greater extent, the social and political and economic agenda.

Mr White: I think it is interesting when you mention that, that the sideshow --

The Vice-Chair: Mr White, at this point there are two other questioners and we have only got about about 10 minutes left, so I will have to go to Mr Winninger.

Mr Winninger: I will be very brief. We have had this argument in private before and now we are going public. I attended your conference at Western entitled The Charter of Wrongs. There is an interesting dichotomy of viewpoints between yourself and Anne Bayefsky, who presented last Tuesday. She suggested that because of the number of provinces that have opted out under section 33 on very vital issues of social and economic rights, it is very important that we entrench these economic and social rights and clarify them in the Charter of Rights, even though we may not provide the same remedies there that we do for individual rights.

Given the history you presented of how elections might be bought, to use Mr White's words, it seems to me we may be in a very precarious position if we rely exclusively on governments to guarantee and deliver those social and economic rights and ignore the value of a more objective judicial tribunal that will not be motivated entirely by politics, that can look at the individual or collective rights and ensure that they are protected and preserved.

Mr Martin: I go back to the point with which I began: Constitutions are not real things; they are words on pieces of paper. A Constitution cannot do anything by itself. Ultimately, a Constitution only means -- can only mean by the nature of the beast -- what a group of lawyers decides that it means.

I think this really comes down to a very basic point about constitutions and how we perceive them. Looking at the history of this country, I am far more willing to put my trust in, in this province, 125 elected representatives of the people who are subject to public criticism, who have to stand for election at periodic intervals, who do their business in the full glare of publicity. I would much, much rather take my chances with those 125 people than I would with nine old lawyers sitting in a courtroom in Ottawa who, remember, are not elected, who are not accountable, who are not responsible to anyone. It is a basic principle of our Constitution, remember, that judges are not accountable or responsible to anyone. I would far rather take my chances with the 125 elected representatives who work in this building than I would with those nine old lawyers in Ottawa.

Mr Malkowski: What a very interesting presentation. It is a little different from what we have been hearing all this week. In the title, where you talked about the Constitution, you are saying that we cannot make it a perfect Constitution. You were saying that the corporate entities within the country have used charters themselves actually to get away with making profits. How would you then encourage people to use legislation or, let's say, the law, the process of the judiciary, to approach constitutional amending in terms of gaining their rights? How do people access that when you talk about citizenship? How do people approach that? How can people, given what you have talked about this morning, define their economic and social rights?

Mr Martin: I do not wish to be flippant, but my view of this, to express it succinctly, is that we should take politics out of the courtrooms and put politics back in the streets where they belong. Let me give a concrete example of this.

You will recall that in the early 1980s Prime Minister Trudeau announced that he was going to permit the United States Air Force to test air-launched cruise missiles over Canadian soil. There were many Canadians, including, I am pleased to say, myself, who were not enthusiastic about this decision of Pierre Trudeau's.

A very large, widespread and popular movement in opposition to the testing of US Air Force air-launched cruise missiles over Canadian soil sprang into existence. There were some huge demonstrations in Toronto. There was a demonstration in Toronto in 1983 which was, I believe, up until the demonstrations at the G-7 conference here in 1988, the largest demonstration that ever occurred in this city, of people expressing their profound opposition to our government allowing the US Air Force to do this. This was the case all across the country. A very large and determined and vocal movement of opposition to the testing of US Air Force cruise missiles developed. It was becoming a serious political challenge to this decision.

This movement, in my view, could have grown and flourished and developed and pressed its opposition. What did it do? It forsook the streets, it forsook politics and decided to go into the courtroom. It decided to take its fight against cruise missiles off the streets and bring it into the courtroom. What was the result of that decision? Operation Dismantle, which was the name of the umbrella organization that was co-ordinating the opposition, lost its judicial challenge to cruise missile testing, as, I would suggest, any first-year law student could have told it that it would. But it lost far more than the courtroom battle. It lost $150,000 that it ended up paying to lawyers, all its money, and it lost its political energy. It lost its direction. It lost its will.

Rather than putting the energy and the devotion and the political skills of the organization and its members into political work, everything became channelled towards litigation, raising money to pay lawyers. Rather than getting out in the streets and saying, "Why the hell are we allowing the US Air Force to test cruise missiles?" everybody's energy was directed towards raising money to pay lawyers. Of course, the lawyers were paid handsomely. The result was that not only was the litigation a failure, Operation Dismantle evaporated, its energies dissipated, its treasury bankrupt, its members disillusioned.

I feel like weeping when I see, almost daily, some organization in this country announcing that it is giving up politics, it is giving up the struggle and it is going to go to court. I think, not again -- a chase after political battles in the courtroom which, I repeat, only ends up benefiting lawyers. My answer is, to repeat, that we guarantee these rights, we fight for these rights in the way that Canadians always did -- in the streets, on the shop floor, in the workplace, in the classroom, in the office, not in the courtroom. If I might repeat my simple answer to your question, take politics out of the courtroom and put politics back in the streets where it belongs.

The Vice-Chair: With that, I would like to thank you, Professor Martin, for what was certainly a challenging presentation for most of the members of our committee and those people watching.

That concludes the end of our second week of hearings. We will be returning Monday at 2 o'clock in the afternoon. We will be resuming our hearings at that time. Till then, we stand adjourned. I ask the committee members to wait just one second. We need to deal with a couple pieces of business.

The committee adjourned at 1232.